You May De Damned if You Don’t Understand that Pregnant Employees are People Too.

Posted: December 12, 2011 in Disability Liability, Discrimination

You just found out that your employee is pregnant, what do you do!? First, take a deep breath and relax. Employers sometimes go a little cuckoo when they learn that an employee is pregnant, but you don’t need to do this. Pregnant employees really are people too. They are in fact the same employee they were the day before you learned that they were pregnant.

I could bore you with a lot of detailed laws on pregnancy discrimination and maternity leave, but you can find that information on a hundred different websites. I’ll boil it down for you. Treat pregnant employees like everyone else, except when you have to treat them differently. Easy, right? It’s actually not that bad.

Generally, you should treat pregnant employees like anyone else. They have the same job expectations as before they were pregnant. Might not they have to go to the doctor’s for appointments you ask? Yes, and so do other employees. Might they become physically unable to do certain physical tasks? Yes, as could any employee. Provide them with reasonable accommodations. Might they have complications and require a leave of absence? Yes, as might any other employee have medical issues that require a leave of absence.

Pregnant employees are not treated that differently for leave under the FMLA (applies to employers of over 50 employees). They get the same 12 weeks of leave that employees with a serious medical condition get, and the same rights of reinstatement. The Massachusetts Maternity Leave Act applies to employers of six or more employees, and the leave required is 8 weeks. This is different because the statute applies specifically to pregnant employees and employees who have recently given birth. There is no other type of employee under Massachusetts law who is entitled to specifically 8 weeks of leave.

Here’s what you don’t do. Don’t decide on your own to put the employee on light duty “for her own safety.” That’s not your decision to make. Don’t assume that the employee is not coming back to work and don’t ask insulting questions or make insulting comments in that regard. Assume the employee is returning to work unless and until she tells you otherwise. Do not eliminate the employee’s job while she is on leave. While it is theoretically possible to do this without liability, it doesn’t look good, and you had better have a damned good business reason. And don’t give extra time off out of the kindness of your heart. Doing so could actually open you up to a discrimination claim by male employees (however, if the employee is rendered disabled by childbirth, a reasonable accommodation could include more time off).

If you have an employee who is pregnant and you are freaking out, or you just have some questions on your rights and obligations as an employer, give me a call at 617.338.7000.

By Adam P. Whitney

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