FMLA Obligations for Pregnant and Nursing Mothers

HR Policies & Procedures
by Stephen Bruce, PhD, PHR

In yesterday’s Advisor, we covered discrimination laws and pregnancy; today, FMLA and pregnancy, plus an introduction to an extraordinary collection of pre-written job descriptions, available on CD and ready for you to implement.

The Pregnancy Discrimination Act (ADA) applies regardless of how long an employee has worked for you. The federal Family and Medical Leave Act (FMLA), on the other hand, has the 12-month, 1,250 hours eligibility requirements. In addition, the FMLA applies to new fathers as well as mothers.

If your company is subject to the FMLA, you must:

  • Provide FMLA benefits during pregnancy, such as when an employee is on bed rest before giving birth. This would count toward the 12 weeks of total leave.
  • Provide up to 12 weeks of unpaid leave per year to a father or mother to care for a newborn baby, adopted child, or foster child.

If you employ both the mother and father of a new baby, they are entitled to a combined total of 12 weeks of maternity/paternity leave, but only for time off to care for a newborn or an adopted child. Time off for prenatal care, pregnancy complications, or to care for a sick child isn’t subject to the 12-week combined limit for maternity/paternity leave. Time off for those purposes would be attributed to each individual employee and count toward his or her individual 12-week allotment.

Note: You are not required to permit 12 weeks of intermittent leave for bonding.

  • Reinstate a parent returning from leave to the same or an equivalent position.
  • Maintain the employee’s existing level of coverage (including family or dependent coverage) under a group health plan during FMLA leave, provided the employee pays her share of the premiums.

BLR’s SmartPolicies gives you 350 HR policies, prewritten for you, ready to customize or use as is. Click here to examine it at no cost or risk.


And Speaking of Pregnancy: Nursing Employees

The Patient Protection and Affordable Care Act amends the Fair Labor Standards Act (FLSA) to add a new section requiring “reasonable” break time for nursing mothers.

Because the FLSA applies to almost all employers, the new break requirement does as well. The only employers exempt from the break requirement are those with fewer than 50 employees that would experience undue hardship from “significant difficulty or expense” by complying with the requirement.

A nursing mother will be eligible for the break time for up to one year after her child’s birth and may take advantage of the breaks anytime she has the need to do so. Employers must provide a private place, other than a bathroom, for the employee to use for expressing breast milk.

Contrary to the general FLSA requirement that you must pay for breaks that last less than 20 minutes, the amendment permits nursing mothers’ break time to be unpaid. However, the amendment is clear that it will not preempt state laws that provide greater protections to nursing mothers, e.g., laws that require such breaks to be paid.

It’s critical to have a policy for managing pregnant employees. Of course, there are a lot of critical policies. Our editors estimate that for most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It’s easy to let it slide, but you can’t afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.

Fortunately, BLR’s editors have done most of the work for you in their extraordinary program called SmartPolicies.


Don’t struggle with those policies! We’ve already written them for you, and at less than $1 each. Inspect BLR’s SmartPolicies at no cost or risk.


SmartPolicies’ expert authors have already worked through the critical issues on some 100 policy topics and have prewritten the policies for you.

In all, SmartPolicies contains some 350 policies, arranged alphabetically from absenteeism and blogging to cell phone safety, EEO, voice mail, and workers’ compensation. What’s more, the CD format makes these policies easily customizable. Just add your company specifics or use as is.

Just as important, as regulations and court decisions clarify your responsibilities on workplace issues, the policies are updated—or new ones are added—as needed, every quarter, as a standard part of the program.

SmartPolicies is available to HR Daily Advisor subscribers on a 30-day evaluation basis at no cost or risk … even for return postage. If you’d like to have a look at it, let us know, and we’ll be happy to arrange it.

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