Maternity and paternity leave are big issues these days for many companies, but they are issues that have been clearly laid out by the Family Medical Leave Act, and issues surrounding a pregnancy itself are addressed by the EEOC.
According to the EEOC, employers are prohibited from refusing to hire a woman because of her pregnancy as long as she is able to perform the major functions of the job. Also, an employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of clients, customers or coworkers.
This is all part of the Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, which states that discrimination on the basis of pregnancy, childbirth or related medical conditions is unlawful discrimination. Pregnant women as well as women affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
And as far as actual leave is concerned, according to Herbert Ehrhardt, a partner with McCalla, Thompson, Pyburn, Hymowitz & Shapiro, PLLC, certain companies must provide at least job-protected leave in order to be in compliance with the Family and Medical Leave Act, which was passed in 1993.
“(Companies with) 50 or more employees within a 75-mile radius — those with one year of service and 1,250 hours or more — are entitled to job-protected leave of up to 12 weeks,” he said. “If both spouses work for the same employer and wish to take the 12 weeks it’s a combined leave.”
Smaller and larger employers who do not have 50 or more employees within a 75-mile radius generally give maternity or paternity leave, though, because they wish to be competitive in terms of benefits.
“In most cases it’s a matter of economics and competition,” Ehrhardt said.
Frequently, maternity and/or paternity leaves are granted with pay for certain periods of time of presumed disability. And many companies also have temporary insurance disability policies so that if they don’t offer paid leave, the pregnant female will be entitled to up to 60% of her earnings due to complications of her pregnancy.
But many of these disability policies will not pay on pregnancies without complications.
Of course, the FMLA does not only protect a pregnant female and her spouse, but also covers any immediate family member of the employee, which is defined as the mother, father, child or spouse, for other serious medical conditions. “Generally, that’s going to be a period of illness or disability that requires multiple treatments under the supervision of a health care professional,” Ehrhardt explained.
Many companies ask that their employees use their vacation and sick time before using their paid maternity leave, and most companies require that employees exhaust their paid benefits as part of the 12-week period. In other words, companies with a week of vacation time and a week of sick time do not offer 12 weeks plus two weeks, but 12 weeks total, although it is up to the company.
But Ehrhardt erred on the side of caution: “It’s important to structure your policies so that exhaustion of paid leave benefits is clearly stated.”
McCalla, Thompson, Pyburn, Hymowitz & Shapiro, PLLC, advises management about policies and procedures, drafts handbooks and represents management employers in litigation in all areas of labor and employment law. The real action in court now is in state, as opposed to federal law claims, according to Ehrhardt. In fact, verdicts of $3 million have been awarded to plaintiffs in some employment cases.
The benefits maternity and paternity leave packages can offer businesses are clear: competition. But there are traps as well. “If you don’t properly design your policies you can have a stacking of time periods of entitlement under your policies,” Ehrhardt said.
One popular way of designing a leave policy is to do so by the “rolling backwards measurement.” It measures the amount of leave entitlement from the date protected and then another 12 weeks off. So if 12 weeks of leave was taken beginning in the first week of February 2001, after the first week of February 2002 the employee would have one week of the 12 weeks of leave again.
Those who fail to show in their policies that the exhaustion of paid leave benefits are part of FMLA leave could prove as a trap for employers as well. “In small businesses, that can create an extreme hardship,” Ehrhardt said.
And when it comes to hiring and firing, Benjamin Bradley, area director of the EEOC for the state of Mississippi, suggested that employers not ask women if they are pregnant when they come in for a job interview and not fire them because they are pregnant either.
“Treat them as you would any employee,” Bradley said. “If you’re going to let someone with a heart attack come back after six months, that’s fine but you have to do the same for the (pregnant female).”
Contact MBJ staff writer Elizabeth Kirkland at firstname.lastname@example.org or (601) 364-1042.
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