We have less than 25 employees at our company. A salesperson is going out on maternity leave. This is going to put a burden on us. – If she is out for say 6 weeks and she returns, do we have to give her the same job back or an equivalent job? What if we hired a temp? Do we have to get let the temp go when the employee comes back? We are located in New York.
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As an employer with less than 50 employees, the federal FMLA would not apply.
The Pregnancy Discrimination Act (PDA) protects the pregnant employee from discriminatory actions that are based on her pregnant status. It applies to employers with 15 or more employees.
The PDA requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work. The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits).
The PDA does not require employers to provide pregnancy leave, but if an employer does have a short-term disability plan, it must be available to pregnant women just as it is to employees with other temporary disabilities. In addition, the PDA requires employers to provide the same job restoration rights to employees returning from maternity leave as it does other temporarily disabled employees who are similar in their ability or inability to work.
If a temporary employee is hired to fill in for the employee on leave, the employee would still have the same job restoration rights as temporarily disabled employees returning to work after a disability leave.
Nearly all the states have their own laws on pregnancy protection and leave. Although New York does not have a family and medical leave law, the New York Human Rights Law prohibits employment practices that discriminate on the basis of sex and sexual orientation. Discrimination based on sex has been interpreted to include discrimination because of pregnancy. The law covers employers with four or more employees (NY Exec. Law Sec. 290et seq.).
If the employer is located in New York City, it should be familiar with the city’s pregnancy and leave related ordinances described on HR.BLR.com.