Years ago, employers would celebrate an employee”™s pregnancy by throwing a baby shower or buying a baby gift. The employee was then left to juggle her pregnancy and her job.
Over the past two decades, employers”™ obligations toward pregnant employees and their spouses and partners have significantly changed, the latest trend being the enactment of paid family leave laws. This article outlines your obligations toward pregnancy-related leave and what else may be coming down the pike.
We start with the lead federal law ”” the Family and Medical Leave Act (FMLA). Enacted in 1993 under the Clinton administration, it was the first major law that required covered employers to give employees family and health-related leave. Under the FMLA, employers with 50 or more employees are required to give up to 12 weeks of unpaid, job-protected leave to eligible employees who must take leave due to a serious medical condition of their own or a family member; or to bond with a new child. Although the leave need not be paid, employers must maintain the employees”™ health benefits and upon the employee”™s return to work, must restore them to the same or an equivalent job. Currently, Congress is considering mandating paid family leave, a topic that has surfaced numerous times on the presidential campaign trail.
Most states have also passed laws similar to the FMLA with additional requirements. For example, Connecticut law requires private employers to provide 16 weeks of unpaid, job-protected leave during a two-year period. In addition to all these leave laws, further time off may be required under the Americans with Disabilities Act as an accommodation to disabled employees, including pregnant employees.
There are generally two sets of leave laws that may cover pregnancy-related absences ”” paid sick leave laws and family leave laws. Generally, paid sick leave laws provide short-term paid leave for health-related absences while paid family leave laws provide longer-term paid leave for health-related absences as well as leave for parents to bond with their new children.
In recent years, paid sick leave laws have been enacted in states and municipalities across the country. Connecticut passed a paid sick leave law requiring employers with 50 or more employees in the state to provide up to 40 hours of paid sick leave in a year. Leave can be taken for, among other things, the employee”™s health-related issue or that of certain close family members.
Other states with paid sick leave laws include California, Massachusetts, Oregon, and Vermont. Additionally, over 20 municipalities have jumped on the bandwagon and enacted similar laws. For example, New York City passed a paid sick leave law requiring all private employers to provide up to 40 hours of sick leave, which must be paid if employers have over five employees and unpaid if employers have less than five employees.
Paid family leave ”” that is, paid maternity or paternity leave to care for and bond with a new child ”” has become a hot topic recently with New York state and San Francisco having recently passed such laws. Only five states have passed these laws ”” New Jersey, California, Rhode Island, New York and Washington. New York”™s law was enacted this year and will be phased in beginning in 2018 with covered employers required to give eight weeks in 2018, 10 weeks in 2019, and 12 weeks in 2021. The laws that have passed so far call for the leave to be administered and funded through disability insurance programs.
The good news for employers is that except for New Jersey, these leaves are funded solely by the employees through payroll deductions. Each law provides partial wage replacement for employees for four to 12 weeks for family-care reasons and longer if the employee has a disability. Generally, most private sector employers are covered under the laws, without regard to size. We expect many municipal and state legislatures to pass such laws in the coming years.
As you can see, this area of the law has evolved and continues to evolve, in a patchwork of local, state and federal laws. In light of this changing landscape, employers would be wise to ensure they understand the leave laws where they do business and keep up to date with new local, state and federal laws. We also suggest employers do the following:
- Review the requirements of each law with which they must comply and understand how the laws work together ”” for example, can the leave run concurrently?
- Understand any other requirements such as notice requirements, health insurance and other benefits that must be maintained during leave , and reinstatement.
- Ensure human resources personnel and managers who make leave decisions understand these laws and are properly trained on how to apply them and how to avoid retaliation, discrimination and interference claims.Â
- Create an administrative procedure for handling leave requests and coordinate with any third parties involved in this process, such as payroll vendors.
- Consult counsel prior to taking any disciplinary action against, replacing, denying leave to, changing the working conditions of, retaliating against or otherwise discriminating against pregnant employees and their spouses or partners.
If you successfully navigate all these obligations, you can be seen as the hero. But if not, you may face in-court litigation and administrative charges, which are not only very costly and time-consuming to defend, but can create very damaging press. In this area, an ounce of prevention really is worth a pound of cure.
Robert G. Brody is the founder of Brody and Associates LLC, a law firm with offices in Westport and New York City that represents management in employment and labor law. He can be reached at rbrody@brodyandassociates.com or by phone at 203-454-0560.
Abby M. Warren is an associate at the Brody firm. She can be reached at awarren@brodyandassociates.com or by phone at 203-454-0560.
