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Great Expectations

October 22, 2002
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Related Topics: Discrimination and EEOC Compliance, Featured Article
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Many employers don’t have a clue about how to treat pregnant women. That’sapparently why pregnancy-bias complaints have jumped 25 percent in the pastdecade. A mother-to-be has coverage under the Pregnancy Discrimination Act of1978 and the FMLA, and companies should know the ins and outs of both. SarahKelly, an attorney with the Philadelphia law firm Cozen O’Connor, explainswhat HR should expect when employees are pregnant.
What are the basics of the PDA?
The interesting aspect of the Pregnancy Discrimination Act is that it doesn’trequire any special treatment of pregnancy by employers. It simply requires anemployer to treat a woman who is temporarily disabled because of pregnancy thesame as it treats any other person with a temporary disability. So it’s astatute that requires equal treatment, not preferential treatment.
What should HR do to ensure that its policy is in order?
The first thing to do is to look at how you’ve set up your policy. Acompany should not have a "maternity leave policy." Because that suggeststhat there’s something different about maternity than other types oftemporary-disability leave. So if you’re an employer who’s subject to theFMLA, you should have an FMLA policy that complies with federal law, and youshould consider whether [you’re subject to] any state laws that also deal withleave rights. If you have the appropriate FMLA policy, treat the employee whowants pregnancy leave within the terms of the policy. Don’t have a separatepolicy. If you don’t have a separate one, there will be no kind of inferencethat you had an intention of treating women differently on the basis ofpregnancy.
What do you do when an employee tells you she’s pregnant?
Congratulate her. Ask appropriate questions like: "Are you feeling well? Isthere anything we can do for you?" Don’t say things like, "Oh gosh, Iguess you’re going to want a lot of time off." In my experience, the thingthat’s most difficult to deal with is well-intentioned discussion by asupervisor about a woman’s pregnancy and upcoming motherhood. This can comefrom other women as well, along the lines of "I found when I was pregnant Iwas distracted by thoughts of wanting to stay home." Or from a supervisor who’sa father: "Gosh, when my second child was born, we just couldn’t handle mywife staying at work anymore. There was too much to do at home." These thingsare intended to be sympathetic but are going to be taken the wrong way if there’slater any kind of adverse action against the employee. So my advice is to keepit to comments that are very standard and socially appropriate: "I’m veryhappy for you. Please let me know if there’s anything you need."
Should you advise the employee about FMLA coverage?
It’s appropriate to say to the employee: "You may want to become familiarwith our FMLA policy, because if you’re intending to ask for leave, youprobably need to give some advance notice." Because under the FMLA, it’slawful to ask for advance notice where it can be given. While nothing’s everdefinite with a pregnancy in terms of when delivery can occur, it’s certainlythe type of situation that an employee could give advance notice of: "My duedate is May 16 and I anticipate leaving work on May 10." So remind theemployee to review the FMLA policy and check with HR for any help or questionson that policy. And keep in mind that fathers are also entitled to leave underthe policy.
What about during the pregnancy?
Throughout the pregnancy, ensure you’re treating the person the same as you’dtreat an individual who has a temporary disability. For example, allowing theindividual to use sick leave in case of morning sickness. Be conscious of anyemployee that has had a consistent absenteeism problem. If you haven’tterminated or disciplined for that problem, and that continues or intensifiesduring the pregnancy because of morning sickness or doctor’s visits—that’snot a good time to begin disciplining. You have to exercise some judgment there.And if you have been consistently disciplining the employee, check with counselbefore you take any adverse action against the pregnant employee based onattendance issues.
How should the leave itself be handled?
The issue is treating the employee in accordance with other disabilities.They get the 12 weeks of unpaid leave, according to the FMLA. There are somestates, like New Jersey, where the person may get additional time, because theyget time under the FMLA for their own temporary disability, and then the statelaw gives them 12 additional weeks for the care of the child. But that’s goingto be unique state by state.
When should the employee return to work?
Certainly an employer has the right to require return-to-work certificationfrom a physician following any temporary disability leave. If you question thecertification—you believe the employee is not able to return to work—you areentitled to get a certification from a company-appointed doctor. If the twocertifications differ, then you go to a tie-breaker doctor, under the FMLA. That’snot all that likely to be an issue, because often the person is healthy enoughto return.
What about a case where a mother believes she still isn’t able to returnafter her FMLA leave expires?
Then the question is: What do you do in other situations in which employeeswith similar temporary disabilities need more than their FMLA entitlement? Doyou give it to them? That’s the question you have to ask, because it’s allabout being treated the same.
How should HR handle a situation in which a pregnant employee is passed overfor promotion?
That’s the stereotype: that women with children are on the mommy track. Butpassing over a person for promotion while she’s pregnant may be a violation ofthe PDA. Once she is no longer pregnant and has returned to work, passing over awoman for promotion because she has children is a straight gender-discriminationissue. You’re no longer dealing with the PDA. So the question there is: Haveyou also passed over women without children or men with children? Are youtreating a woman with children less favorably than women without children ormales with children? If you can demonstrate that there are comparable people inthe promotional pool who were also passed over for promotion, I don’t thinkthe employer is going to have a problem.
What about an employee who’s laid off while on leave?
Again, you have to meet the same standard you’d meet if you’d laid offany other person on FMLA leave. That standard is: If the person would have beenlaid off anyway, regardless of the fact that they were on leave, then the layoffis valid. The ones I get most concerned about are layoffs that involve only theemployee who is on leave. The employee is not part of a bigger layoff, andnobody else in the department or company was laid off in that time. Why did thatperson get laid off? What you’ll often hear from employers is: "I realized Icould do without them. They weren’t there, and we were doing everything weneeded to do, we didn’t have to hire a temp, no one was moaning and groaningabout the extra work." What I say to an employer in that circumstance is: You’vegot to recognize that you’re likely to get a suit. So you’ve got to verycarefully document who picked up what work, and you’ve got to demonstrate thatit wasn’t any additional hours for these people. But it is a risky situation.

Workforce, November 2002, pp. 84-85 -- Subscribe Now!

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