Pregnant employees typically present a host of Family and Medical Leave Act (FMLA) issues, and then, for many employers, there’s the very tricky balancing act of fetal protection—what to do when the mother wants to work in a job that might endanger the unborn child.
FMLA Protection for Pregnant Employees
Under FMLA, incapacity because of pregnancy or prenatal care is generally considered a serious health condition.
FMLA and the Birth of a Child
Under the FMLA, leave for the birth of a child is available to either men or women. There are some special requirements and exceptions:
Leave for the birth of a child must be completed within 12 months of the date of birth.
An employer is not required by the FMLA to grant intermittent or reduced leave to eligible employees to care for (meaning “to bond with”) their newborns. Employers, however, may elect to do so.
However, if the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition, the employer’s consent for intermittent or reduced leave would not be required.
Employees can take as much or as little FMLA leave time as they want (subject, of course, to the 12-week maximum) and need not provide any certification. Leave for birth is available automatically and does not relate to any medical need of either the parent or the newborn child.
Note: Many states have their own family and medical leave laws that are similar to the FMLA. Employers covered by the FMLA should follow its requirements with respect to pregnancy leave, unless the employer’s own disability/pregnancy leave policy or the state leave law is more generous.
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Gender-Based Exclusions and Fetal Protection
Although the Equal Employment Opportunity Commission (EEOC) has stated that it should be the employee’s decision whether the hazards in the workplace to unborn children are worth risking for the position, a ruling by the U.S. Supreme Court in 2002 upheld the employer’s right to exclude an applicant or employee from the workplace where it had determined that the workplace would subject the individual to substantial harm.
So what should you do in these situations? Make a careful and well-documented determination of the danger. This determination should not be based on fear or speculation that a pregnancy may indicate a greater risk of future injury or absenteeism or may cause future workers’ compensation or insurance costs.
An employer may disqualify a pregnant employee or applicant only where there is specific medical documentation, reflecting current medical knowledge, that this individual would be exposed to a significant, current risk of substantial harm to health or safety.
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