As a member of an industry that employs a significant number of women, you should make preparing for expectant employees a vital part of your medical spa’s business plan. Although you may fret about the upheaval a pregnant employee might cause, it is important to know what you must do and what you must notsay to the employee in response to a pregnancy announcement. Pregnancy discrimination lawsuits are on the rise, and U.S. Equal Employment Opportunity Commission (EEOC) data reveals that approximately 3,543 charges were filed by individuals alleging pregnancy discrimination in 2015 alone.
When an employee becomes pregnant, especially in a small workplace setting, this can affect the workload, productivity, efficiency, and profitability of your business. However, if you are accused of discriminating against or denying certain rights to a pregnant employee, you may find yourself and your business in even deeper water. As an employer, it is crucial that you know what you can and cannot do under state and federal anti-discrimination and leave laws to avoid a lawsuit.
So how do you protect your business while complying with the law and providing your employee with a discrimination-free workplace? First, you must become familiar with the federal laws that govern pregnancy in the workplace. Currently, there are three federal laws that regulate different aspects of pregnancy: the Pregnancy Discrimination Act (PDA), which prohibits discrimination against employees on the basis of pregnancy; the Family and Medical Leave Act (FMLA), which entitles eligible employees of covered employers to take leave for specified reasons, such as pregnancy; and the Americans with Disabilities Act (ADA), which protects pregnant women with pregnancy-related impairments that temporarily or permanently disable their major life activities.
Under the PDA, an employer with 15 or more employees cannot discriminate based on pregnancy regarding any aspect of employment, including hiring, firing, pay, job assignments, promotions, training, and benefits. Furthermore, it is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Creating inconsistency in the way you treat pregnant employees is a quick way to trigger a discrimination lawsuit. Thus, it is important that you institute sound policies and practices that apply equally to all employees.
When an employee becomes pregnant, there are some key provisions of the PDA to remember:
• You cannot exclude single, unmarried women from receiving maternity benefits;
• You must provide the same coverage for pregnancy-related conditions as you do for other illnesses and disabilities;
• You cannot make personnel decisions based on stereotypes or assumptions about a woman’s job performance during pregnancy or after her return from maternity leave;
• You cannot harass or discriminate against an employee based on her pregnant condition.
When your employee becomes pregnant, you must also consider her potential right to take a leave from work under the FMLA.
If your business employs more than 50 employees, and one employee becomes pregnant, to be eligible for FMLA leave, the employee must:
• Have worked for you for at least 12 months (not necessarily consecutively)
• Have clocked at least 1,250 hours of service during the 12 months leading up to the FMLA leave.
Note, however, that small private companies with fewer than 50 employees are not considered “covered” employers under the FMLA and do not have to comply with the FMLA leave requirements.
If the employee is eligible for FMLA, according to the above criteria, the employer must grant the leave. Employees can also use the allowable FMLA leave if they suffer any complications during pregnancy or birth that constitutes a serious health condition. As an employer, you need to determine whether you are subject to FMLA and whether your pregnant employee is eligible for leave. Several states mandate more specific FMLA laws, so it is important to know your particular state’s regulations with regard to leave.
One other federal law that may come into play for a pregnant employee is the ADA. Although a normal pregnancy is not considered a disability, if a woman experiences pregnancy complications that substantially limit her ability to work or perform other major life activities, she may be considered disabled under the ADA. If this is the case, the pregnant employee will be entitled to reasonable accommodations that allow her to perform her job while pregnant.
A growing number of states are requiring employers to provide some form of accommodation to pregnant workers, regardless of the employer’s size. For instance, in Illinois, the Pregnancy Workers Fairness Act, which took effect in early 2015, amends the Illinois Human Rights Act to impose new requirements on employers for the treatment of pregnant employees and applicants, and it applies to all employers with one or more employees in Illinois. So unlike the PDA, this law applies regardless of the employer’s size. Other states are joining the ranks, and at least 16 states have passed laws requiring some employers to provide reasonable accommodations to pregnant employees.
There are several key laws protecting the rights of pregnant employees, and as an employer, it is crucial to know and understand these regulations to avoid contributing to the increasing number of pregnancy discrimination lawsuits filed against employers in this country. To take an even more proactive step, consult with an attorney specializing in this field to review your employment policies and get advice on what you can and cannot do when your employee announces she is pregnant.