What To Expect When Your Employees Are Expecting: New Regulations For Dealing With Pregnancy In The Workplace

Thursday, April 24, 2014 - 14:59

Unlike years past, women no longer consider pregnancy a reason to marry, much less leave the workplace – at least not on a permanent basis. This means that there are many more women of childbearing age active in the workforce. In addition, a myriad of state and federal discrimination and leave laws have been enacted to protect pregnant employees. In fact, California, a state with five separate laws providing additional job protection for pregnant workers, enacted regulations effective in 2013. These regulations, as summarized below, further expand rights and safeguard not just pregnant workers, but employees who are “perceived” to be pregnant.

General Guidelines

Claims for discrimination are now frequently brought by employees who believe that adverse employment action taken against them arose out of their pregnancies. Employers need to become knowledgeable about what the laws require and become much more savvy in the way they treat this increasingly larger portion of their workforce: the child bearers. The following are some general guidelines to assist well-meaning employers:

1. If a woman looks as though she may be expecting but has not made the announcement, do not ask. Always wait for her to announce the news.

2. How should you respond to news of the coming blessed event? Pregnancy is always good news! It is always a joyous, miraculous, marvelous, extraordinary event.

  • What position the woman holds or how much the pregnancy might inconvenience operations should never change your positive response.
  • Her marital or relationship status – it’s none of your business.
  • How many kids she already has (as opposed to how many you think is a suitable and tasteful number) – also none of your business.
  • Multiple births? Multiple joy. The more babies, the better.

3. What you should never ask:

  • Who the father is.
  • Did she intend to get pregnant or was it an accident?
  • Has she considered other “options”?
  • When the baby is due (unless the pregnancy has been announced).

Do not, under any circumstances, say – or even agree with her if she says – that getting pregnant was stupid, wrong, ill-advised, that she will look like a house, etc.

4.  What you should never do:

  • Use idioms or vernacular – even if commonly heard or used by others – to describe her condition. Examples of wrongful language include “knocked up” or “bun in the oven” or “baby bump” instead of ”expecting“ or “pregnant” or better yet, “bundle of joy.”
  • Tease her about her changing appearance. Don’t comment on her size or shape, and don’t make comparisons to objects such as watermelons, basketballs or other spherical objects.
  • Touch. And never, ever pat her tummy unless she invites you to. Even then, it’s highly recommended to have her permission in writing.
  • Insinuate in any way that hormones are affecting her attitude, job performance or general disposition. (Actually, avoiding mention of any bodily condition as a contributing factor to work performance applies to any gender at any time, pregnant or not.)

5. Miscarriage

This is serious. A miscarriage is always a tragedy. A stillborn birth is even worse. Don't ever say it's “for the best” or it was “God’s plan” or anything to that effect. The only permissible response is "I am so very, very sorry. What can I do?" Send flowers to her home and/or a note of sympathy. Be gentle – allow time to grieve and heal.

6. Job Duties

  • Don’t make assumptions about what she is able or unable to do.
  • Don’t reassign certain of her job duties to other staff without fully discussing the issues with her first.
  • Don’t transfer her job duties or require her to take leave.
  • Let her know that you will do your best to accommodate, but that she has to let you know what her needs are. You don’t have a crystal ball.

7. When she returns to work – whether after a successful delivery or a miscarriage – be certain to make her feel welcome. Make sure she understands that you are delighted to have her back

  • In her same job,
  • With the same pay and perks,
  • With the same opportunities for advancement that she had before,
  • With accommodation for lactation, if she requests.

If, prior to her leave, you were about to reprimand her, you can do so when she returns. However, proceed carefully. Allow her sufficient time to reestablish herself as well as time to remedy past performance issues. This is particularly true if those issues might have been attributable (even in part) to pregnancy side effects.

8. Do not discriminate.

  • If the company gives a shower or collects money for a gift for certain employees and not others, this could well result in resentment and might even rise to the level of discrimination. You must do the same for everyone – even if it is nothing.
  • Private parties given outside the company are another matter. What happens outside the company stays outside the company.
  • Treat every new baby the same. Don’t show preference or discrimination. Whether the new infant is a first-born or the sixth, whether the new arrival arises outside the bonds of holy matrimony or through an adoption agency, you must treat the news in an equitable fashion, showing no favoritism and making no judgments.

The new mother or father, whether he or she is the company’s chief operating officer or a lowly go-fer, should be welcome to bring the baby to work for a “look-see,” as long as the work environment is safe, and the baby would not disrupt the parent’s work or the work of others.

Flexible schedules or telecommuting might make sense, but for employers who don’t have this provision already in place, it might need to be permitted on a case-by-case basis with the overarching consideration being whether the job lends itself to such an accommodation.

Expanded Protections Under California's Pregnancy Disa​bility Leave Law

A few years ago, California – the state in which I reside and practice, and whose population represents more than 12 percent of the nation’s total residents – created new regulations that expand the protections under the state’s Pregnancy Disability Leave (PDL) Law.

Currently, California employers with five or more employees must make pregnancy disability leave (PDL) available to employees. The regulations clarify and, in some instances, expand the PDL protections previously afforded to employees and include the following:

“Perceived Pregnancy” Is a New Basis for Discrimination

The protected class of pregnant employees now includes those who are not pregnant but who suffer adverse employment actions based on the perception by employers that they are pregnant. An employer can now be held liable for acts of discrimination based upon the perception that an employee is pregnant.

Broadened Definition of “Disabled by Pregnancy”

The definition of “disabled by pregnancy” has been broadened to include time off for disabilities previously unrecognized, such as postnatal care, bed rest, gestational diabetes and hypertension. Also included are post-partum depression; childbirth; loss, or end of pregnancy; and/or recovery from childbirth.

Accommodation and Reinstatement Rights

These state regulations expand an employer’s reasonable accommodation obligations to include (1) modifying work schedules to provide earlier or later hours, (2) providing stools, and/or (3) providing additional break time for lactation or trips to the rest room.

As always, an employee on pregnancy leave generally has a right to reinstatement to the same position, or a comparable position, subject to employer defenses. The following is a list of other unlawful conduct for which employers can now be held liable:

  • Transferring an employee affected by pregnancy over her objection to another position, except that an employer may transfer an employee for its legitimate operational needs unrelated to the employee's pregnancy or perceived pregnancy;
  • Requiring an employee to take a leave of absence because of pregnancy or perceived pregnancy when the employee has not requested leave; and
  • Retaliating, discharging or otherwise discriminating against an applicant or employee because she has opposed employment practices forbidden by law.

Current Calculation of the Four-Month Leave Period

The State of California definition of “four months” has been readjusted so as to calculate an eligible employee’s four-month leave period in hours instead of days. Four months is now defined as one-third of a year (or 17- 1/3 weeks). Thus, a full-time employee who works 40 hours a week is now entitled to 693 hours of leave (40 X 17.33). Similarly, a part-time employee who works 20 hours per week is entitled to 346.6 hours of leave (20 X 17.33). Another key change in the California regulations governing pregnant workers is that employees are now eligible for up to four months of PDL per pregnancy, not per year. 

Forms and Notices

The state regulations include certification forms and mandatory changes, which provide information for employees about their rights and responsibilities under pregnancy disability leave:

  • The regulations explicitly allow for electronic or email notices.
  • The regulations also include a requirement that employers give oral or written notice to non-proficient English speakers and written notice translated into any language that might be spoken by 10 percent or more of the workforce at a particular workplace.

The latest revisions to these regulations have now been in place for almost two years, giving other states the opportunity to evaluate these workplace guidelines for their own adoption and use. No matter what rules govern your particular jurisdiction, it is a good practice for employers to update their handbooks or policy manuals – or, should the employer not have a handbook, distribute notices to employees at least annually and certainly as soon as the employer learns that an employee is pregnant or requests accommodation.

Laura P. Worsinger is Senior Counsel in the firm’s Labor & Employment practice and its Litigation Department, resident in Dykema's Los Angeles office. With more than 25 years of counseling and litigation experience, she has extensive knowledge of California wage and hour issues, and represents management in cases involving discrimination, privacy, sexual harassment and other employment-related proceedings.

Please email the author at lworsinger@dykema.com with questions about this article.