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/partners have significantly changed; the latest trend being the enactment of paid family leave laws. This article outlines your obligations towards 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 twelve 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 sixteen weeks of unpaid, job-protected leave during a two year period. New York does not have a similar law but has several laws mandating leave for adoptions and military duty. 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, who need time off.
With regard to paid leave, 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. While New York State does not currently have such a law, other states do including California, Massachusetts, Oregon, and Vermont. Additionally, over twenty 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 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 (i.e., paid maternity/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. In total, 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, ten weeks in 2019, and twelve 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 twelve 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:
- Review the requirements of each law with which they must comply and understand how the laws work together (e.g., can the leave run concurrently?);
- Understand any other requirements such as notice requirements, other benefits that must be maintained during leave (e.g., health insurance), reinstatement, etc.;
- 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;
- Create an administrative procedure for handling leave requests and coordinate with any third parties involved in this process, such as payroll vendors; and
- 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/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. Abby M. Warren is an associate at the firm. Brody and Associates represents management in employment and labor law matters and has offices in Westport and New York City.
