What the FMLA Requires for Pregnant Employees

The PDA applies regardless of how long an employee has worked for you. The FMLA, however, has more eligibility requirements but also more potential benefits. For example, the FMLA applies to new fathers as well as mothers.

To be eligible for FMLA leave, an employee must have worked for your company for at least 12 months (not necessarily consecutively), she must have worked at least 1,250 hours over the past 12 months, and your company must employ at least 50 workers within a 75-mile radius.

The minimum employee requirement doesn’t apply to state and local government employers.

If your company is subject to the FMLA, you must do the following:

Provide FMLA Benefits During Pregnancy

For example, FMLA benefits must be provided when an employee is on bed rest before giving birth. This would count toward the 12 weeks of FMLA leave.

Provide Newborn Leave

You must provide up to 12 weeks of unpaid leave per year to a father or mother to care for a newborn baby, adopted child, or foster child. You may be able to require the employee to use up all of his or her vacation days, sick leave, and personal days first, and this personal leave time can be deducted from the 12 weeks of FMLA leave.

Some companies let employees take the full 12 weeks of FMLA leave in addition to whatever paid leave they are given. If you have such a policy, make sure you apply it to everyone.

If you employ both the mother and father of a new baby, they are entitled to a combined total of 12 weeks of maternity/paternity leave. This is the only exception to the FMLA rule that provides 12 weeks leave per year to each employee.

Note that this combined rule applies only to time off to care for a newborn or an adopted child. Time off for prenatal care, pregnancy complications, or to care for a sick child isn’t subject to the 12-week combined limit for maternity/paternity leave. Time off for those purposes would be attributed to each individual employee and count toward his or her individual 12-week allotment.

You are not required to permit 12 weeks of nonconsecutive or intermittent leave for newborn care, but employers may do this, and if they do, they may require (with certain restrictions) that the employee temporarily change to another job that more easily accommodates the schedule.

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Reinstatement

You must reinstate a parent returning from FMLA leave to the same or an equivalent position, and you must maintain the employee’s existing level of coverage (including family or dependent coverage) under a group health plan during FMLA leave, provided the employee pays his or her share of the premiums.

You may not discriminate against an employee for using FMLA leave; therefore, you must also provide the employee with the same benefits (e.g., life or disability insurance) normally provided to an employee with the same leave status or part-time status.

And Speaking of Pregnancy: Nursing Employees

Section 4207 of the Patient Protection and Affordable Care Act amends the Fair Labor Standards Act (FLSA) to add a new section requiring “reasonable” break time for nursing mothers.

Because the FLSA applies to almost all employers, the new break requirement does as well. The only employers exempt from the break requirement are those with fewer than 50 employees that would experience undue hardship from “significant difficulty or expense” by complying with the requirement.

A nursing mother will be eligible for the break time for up to one year after her child’s birth and may take advantage of the breaks anytime she has the need to do so. In addition to providing the break time, you must provide a private place, other than a bathroom, for the employee to use for expressing breast milk.

Unpaid, Unless …

Contrary to the general FLSA requirement that you must pay for breaks that last less than 20 minutes, the amendment permits nursing mothers’ break time to be unpaid. However, the amendment is clear that it will not preempt state laws that provide greater protections to nursing mothers, e.g., laws that require such breaks to be paid.

State Laws

Many states have enacted their own pregnancy and parent-related antidiscrimination laws that impose stricter rules than the FMLA.

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The Family and Medical Leave Act Compliance Guide includes:

• Leave law overview
• All the new forms and advice on how to use them
• Practical guidance on implementing all aspects of the new rules
• Analysis of federal and state laws, what they require, and how they interact
• Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
• Recordkeeping and reporting requirements
• Reasonable accommodation
• Sample policies and forms

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• A quarterly newsletter and updates, to make sure you stay in compliance as any changes come about

Get more information or order your copy of the Family and Medical Leave Act Compliance Guide.