Sheryl Sandberg’s recent book, Lean In, sparked many lively conversations centered on a woman’s struggle to balance work and family life. Like Sandberg, who asked for special parking while pregnant, expectant mothers face obstacles in the workplace that others may never consider. Ideally, employers should adopt policies that foster a more accepting, "exible environment where pregnant employees can thrive. At the very least, state and federal laws mandate that employers make certain accommodations for pregnant employees. The following are basic guidelines that employers should consider implementing to avoid any claim of unfair treatment by a pregnant employee or new mother:
- Ensure the Company Has a Written Pregnancy Leave Policy in Place.
Have a written maternity leave policy to ensure that there is no confusion regarding its scope and terms. Written policies o$er companies added protection against claims of pregnancy discrimination by employees who were discharged for legitimate reasons, including violation of company policy.
The Family and Medical Leave Act (FMLA) requires employers to over qualified employees twelve weeks of unpaid leave after giving birth. Although the FMLA only applies to companies with fifty or more employees, most state laws also require employers to o$er new mothers a period of leave following the birth of a child.
Ohio law requires employers without maternity leave policies to treat the birth of a child as justification for a female’s leave of absence. Additionally, employers must reinstate an employee to her original position, or a position of like pay, if that employee returns to work within a reasonable period of time following delivery.
- Treat Pregnant Employees the Same As All Other Persons With The Same Ability or Inability to Work.
Ensure that pregnant employees are not subject to di$erent standards than their non-pregnant counterparts. For example, employers can enforce policies that require a doctor’s note from employees before sick leave is granted. However, employers cannot ask a pregnant woman to provide such a note when the same is not asked of a nonpregnant employee seeking sick leave. In short, the law requires fair treatment by employers. Companies cannot utilize special procedures for pregnant employees if those procedures are not also used for similarly situated employees.
- Provide Pregnant Employees an Equal Opportunity to Work.
Most safety concerns cannot morph into a policy forcing pregnant women to take leave. Instead, employers should defer to a pregnant employee’s doctor when determining her ability to work. If the doctor permits the employee to continue working, and she is comfortable doing so, an employer should not interfere or impose a policy that states otherwise.
- Make Reasonable Accommodations for Nursing Mothers.
The Affordable Care Act requires employers provide a reasonable break time for nursing employees for up to one year after a child’s birth. The act forbids employers from isolating a nursing employee to the bathroom; instead they must provide an alternate location free from intrusion and shielded from view.
The Affordable Care Act applies to all companies with 50 or more full time employees. Those companies with fewer than 50 employees are not required to comply if it creates an undue hardship. However, state law may impose obligations on employers with nursing employees, even if those employers are not subject to the Affordable Care Act. While Ohio law does not currently mandate employers with less than 50 employees to o$er nursing breaks to lactating mothers, employers should cultivate an environment where nursing employees are able to meet the demands of both motherhood and employment.
- Do Not Create Policies that Favor Mothers.
Employers, in an enthusiastic attempt to assure fair treatment of pregnant employees, may create policies that actually favor mothers and invite sex discrimination claims by male employees or non-parents. For example, a leave policy that o$ers female caretakers paid time off may be discriminatory if it does not extend this provision to male caretakers as well.
- Encourage Transparency and Documentation.
Companies need not employ pregnant workers that have a laundry list of behavioral and performance related issues simply because they are pregnant. But if employers terminate these employees during or shortly after their pregnancies, they may face discrimination claims. Accordingly, and the same goes for all employees, performance and behavioral issues should be documented in detail when they occur. As documentation evidences the nondiscriminatory justifications for the termination and provides an a&rmative defense if litigation ensues.
One final tip: communicate these policies within your organization. The best policies in the world are not effective if they are not implemented and understood by all employees. While adhering to these guidelines may not end all pregnancy discrimination claims, it can substantially reduce a company’s liability.