What are the basics of the PDA?

The interesting aspect of the Pregnancy Discrimination Act is that it doesn’t require any special treatment of pregnancy by employers. It simply requires an employer to treat a woman who is temporarily disabled because of pregnancy the same as it treats any other person with a temporary disability. So it’s a statute 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. A company should not have a "maternity leave policy." Because that suggests that there’s something different about maternity than other types of temporary-disability leave. So if you’re an employer who’s subject to the FMLA, you should have an FMLA policy that complies with federal law, and you should consider whether [you’re subject to] any state laws that also deal with leave rights. If you have the appropriate FMLA policy, treat the employee who wants pregnancy leave within the terms of the policy. Don’t have a separate policy. If you don’t have a separate one, there will be no kind of inference that you had an intention of treating women differently on the basis of pregnancy.

What do you do when an employee tells you she’s pregnant?

Congratulate her. Ask appropriate questions like: "Are you feeling well? Is there anything we can do for you?" Don’t say things like, "Oh gosh, I guess you’re going to want a lot of time off." In my experience, the thing that’s most difficult to deal with is well-intentioned discussion by a supervisor about a woman’s pregnancy and upcoming motherhood. This can come from other women as well, along the lines of "I found when I was pregnant I was distracted by thoughts of wanting to stay home." Or from a supervisor who’s a father: "Gosh, when my second child was born, we just couldn’t handle my wife staying at work anymore. There was too much to do at home." These things are intended to be sympathetic but are going to be taken the wrong way if there’s later any kind of adverse action against the employee. So my advice is to keep it to comments that are very standard and socially appropriate: "I’m very happy 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 familiar with our FMLA policy, because if you’re intending to ask for leave, you probably need to give some advance notice." Because under the FMLA, it’s lawful to ask for advance notice where it can be given. While nothing’s ever definite with a pregnancy in terms of when delivery can occur, it’s certainly the type of situation that an employee could give advance notice of: "My due date is May 16 and I anticipate leaving work on May 10." So remind the employee to review the FMLA policy and check with HR for any help or questions on that policy. And keep in mind that fathers are also entitled to leave under the policy.

What about during the pregnancy?

Throughout the pregnancy, ensure you’re treating the person the same as you’d treat an individual who has a temporary disability. For example, allowing the individual to use sick leave in case of morning sickness. Be conscious of any employee that has had a consistent absenteeism problem. If you haven’t terminated or disciplined for that problem, and that continues or intensifies during the pregnancy because of morning sickness or doctor’s visits—that’s not a good time to begin disciplining. You have to exercise some judgment there. And if you have been consistently disciplining the employee, check with counsel before you take any adverse action against the pregnant employee based on attendance 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 some states, like New Jersey, where the person may get additional time, because they get time under the FMLA for their own temporary disability, and then the state law gives them 12 additional weeks for the care of the child. But that’s going to be unique state by state.

When should the employee return to work?

Certainly an employer has the right to require return-to-work certification from a physician following any temporary disability leave. If you question the certification—you believe the employee is not able to return to work—you are entitled to get a certification from a company-appointed doctor. If the two certifications differ, then you go to a tie-breaker doctor, under the FMLA. That’s not all that likely to be an issue, because often the person is healthy enough to return.

What about a case where a mother believes she still isn’t able to return after her FMLA leave expires?

Then the question is: What do you do in other situations in which employees with similar temporary disabilities need more than their FMLA entitlement? Do you give it to them? That’s the question you have to ask, because it’s all about being treated the same.

How should HR handle a situation in which a pregnant employee is passed over for promotion?

That’s the stereotype: that women with children are on the mommy track. But passing over a person for promotion while she’s pregnant may be a violation of the PDA. Once she is no longer pregnant and has returned to work, passing over a woman for promotion because she has children is a straight gender-discrimination issue. You’re no longer dealing with the PDA. So the question there is: Have you also passed over women without children or men with children? Are you treating a woman with children less favorably than women without children or males with children? If you can demonstrate that there are comparable people in the promotional pool who were also passed over for promotion, I don’t think the 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 off any other person on FMLA leave. That standard is: If the person would have been laid off anyway, regardless of the fact that they were on leave, then the layoff is valid. The ones I get most concerned about are layoffs that involve only the employee who is on leave. The employee is not part of a bigger layoff, and nobody else in the department or company was laid off in that time. Why did that person get laid off? What you’ll often hear from employers is: "I realized I could do without them. They weren’t there, and we were doing everything we needed to do, we didn’t have to hire a temp, no one was moaning and groaning about the extra work." What I say to an employer in that circumstance is: You’ve got to recognize that you’re likely to get a suit. So you’ve got to very carefully document who picked up what work, and you’ve got to demonstrate that it wasn’t any additional hours for these people. But it is a risky situation.

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