“We just hired her two months ago. Now she is telling us she is pregnant and will need three months off for the birth and for bonding with the child. Didn’t she have to tell us she was pregnant when we interviewed her? How are we supposed to run a business this way?”
These sentiments of frustration are fairly common for employers in California, particularly those with fewer employees and less frequent encounters with maternity leaves of absence. Generally, these sentiments do not arise from hostility toward the employee or pregnancies in general, but rather from the difficulties the employer will face with staffing, and the potential for increased costs. These are real and legitimate concerns. Nevertheless, employers should consider taking a positive view of maternity leaves.
Taking a positive view begins with accepting that pregnant employees are protected by multiple laws. Disagreement with the laws should be directed toward the legislature, Congress and industry associations that lobby for employers. It should not be directed toward or communicated with employees. They did not create the laws, and raising disagreement or frustrations with them will only create bad evidence in pregnancy discrimination cases.
Let’s look at some of the most basic rules.
An employer cannot refuse to hire a woman because of her pregnancy or a pregnancy-related condition. Nor can an employer refuse to hire because co-workers, clients or customers have a negative view of a pregnant employee.
Pregnancy and Maternity Leave
An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. Requiring a doctor's certification about the employee’s ability to work or the need for a leave of absence is permissible, but only if the employer requires similar certification for other kinds of medical issues and disabilities.
If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. The employee may also have the right to transfer to a different position. Pregnant employees must be permitted to work as long as they are able to perform their jobs.
As a general principle, employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. But, even if the employer gives no time off for other leaves, a pregnant employee must be given as much as four months of leave while disabled by the pregnancy. Employers with 50 or more employees will also have to provide as much as 12 weeks of leave for bonding with the new child.
Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Employers must continue to pay for the health insurance during a pregnancy disability leave or mandated bonding leave on the same basis as though the employee were working.
Pregnancy-related benefits cannot be limited to married employees. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.
No Discrimination or Retaliation
It is unlawful to discriminate or retaliate against an employee for a pregnancy, for a leave of absence taken in relation to the pregnancy or for complaining about the employer’s policies or practices related to pregnancy.
These basic rules only scratch the surface of the details in the multiple and overlapping laws that apply to a pregnancy. Accordingly, it is often wise to get expert assistance when handling an employee pregnancy.
It is also wise to carefully plan your communications related to the pregnancy. While poorly planned communication can create bad evidence, well-planned communications create positive energy and strengthen employee relations.
Let’s take the example of an employer who is bothered because a new employee did not disclose that she was pregnant during the interview process.
Taking a positive view requires the employer to understand that there are many legitimate reasons why an applicant might not tell. Fear of the employer’s reaction, desire to keep work and family matters separate and shame about an unwanted pregnancy are just a few. Wise employers can use this situation as an opportunity to set a positive tone, build openness and strengthen the relationship. It can start with a simple question asked in a friendly, non-threatening tone: “Is there a reason you did not tell us you were pregnant?”
Where the conversation goes from there will vary. Here are a couple of possibilities:
Example 1: “I was concerned I would not get the job.”
“That is understandable, but that’s not how we operate. In the future, we want you to feel comfortable that you can have open communications with us on this kind of thing or any matter. That’s the kind of employment relationship we want to have.”
Example 2: “I’m just private about my family things and did not think it was the company’s business.”
“We understand and respect your desire for privacy. We are not going to try and become involved in your private affairs. On the other hand, your pregnancy is not entirely a private matter. Because you will be taking time off from work, it has an impact on the company. Communications and planning are important for the company. We want an employment relationship where you feel comfortable letting us know about family matters that directly affect the company because you know we are going to respect your privacy.”
Taking a positive view of pregnancies and maternity leaves may not be second nature for employers. The approach, however, will reduce the potential for the creation of bad evidence and increase the potential for high-quality employment relationships and the productivity and profit that result from them.
This article originally appeared in the Sacramento Business Journal.