Leave Policy/Compliance

Ask the Expert: ‘I’m a Small Employer with Pregnant Employees in Multiple States! What Are My Obligations?’

Question: We currently have 3 pregnant employees. One lives and works in Minnesota, where we have 4 employees, and the other two live and work in Georgia, where we have 40 employees. We are not covered by FMLA and have a personal leave policy that provides up to 8 weeks of unpaid leave. My questions are: Do we have to provide 12 weeks of leave in Minnesota as per state law, and if we do, does that mean we need to provide 12 weeks of leave to the Georgia employees, too?

pregnant employees

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Answer from the experts at HR.BLR.com:

Thank you for your inquiry regarding maternity leave requirements for employees located in Minnesota and Georgia.

Because your organization has fewer than 50 employees, it is not covered by the federal Family and Medical Leave Act (FMLA), which generally requires covered employers to provide up to 12 weeks of unpaid, job-protected leave for various family and medical reasons including pregnancy leave.  Even if your organization is not covered by the FMLA, then it still must comply with any state laws requiring pregnancy leaves of absence, the federal Pregnancy Discrimination Act, and any internal policies.

Minnesota requires employers with 21 or more employees at any one site in the state of Minnesota to provide up to 12 weeks of unpaid leave for the birth or adoption of a child, or for female employees for prenatal care, pregnancy, childbirth, or related health conditions under its Pregnancy and Parental Leave Act (PPLA) (see Minn. Stat. Sec. 181.941).   Accordingly, if your organization only has 4 employees in Minnesota, it is not covered by the Minnesota PPLA, and you are not required to provide pregnancy leave under that law.

Georgia does not have a state family and medical leave or pregnancy leave law.  Accordingly, you are not required to provide any specific leave for pregnant employees under Georgia law.

Because your organization has more than 15 employees, it must comply with the federal Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act to prohibit discrimination based on pregnancy.  The PDA applies to employers with 15 or more employees and requires employers to treat women affected by pregnancy, childbirth, or related medical conditions the same as employees who are on leave for other temporary medical disabilities.

Thus, because the PDA is an antidiscrimination law rather than a law mandating leave, it does not require covered employers to grant pregnancy leaves.  Instead, it only entitles pregnant employees to the same leave and benefits granted to nonpregnant employees with other temporary medical disabilities.

The Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Pregnancy Discrimination and Related Issues  interpreting the PDA provides that policies relating to the commencement and duration of leave, availability of leave extensions, accrual during leave of seniority and other accrued benefits and privileges, insurance coverage, and reinstatement after leave must apply equally to pregnancy.  So, if your organization regularly grants leaves for employees with other temporary medical disabilities and guarantees reinstatement, then you should treat pregnant employees in the same manner to comply with the PDA.

Accordingly, if you provide 8 weeks of unpaid leave for personal reasons to all employees, then your pregnant employees should receive the same leave.

Similarly, if your organization provides any paid sick leave, pregnant employees should be allowed to use the paid sick leave when they are unable to work because of their pregnancy-related symptoms.  And, if you provide any additional unpaid or paid time off to employees who need leave for temporary medical conditions (distinct from your personal leave policy), pregnant employees should be provided that leave as well.