What Mothers Should Expect from Employers When Expecting

Several federal laws protect mothers and soon-to-be mothers, by prohibiting discrimination based on being or wanting to be pregnant, nursing, or requesting time off for leave to give birth, foster, adopt, or bond with a new child. Mothers should be aware of these federal protections and take advantage of them. (Some of these laws also apply to fathers, but that is beyond the scope of this post.) And while we are discussing federal statutes, there may also be state laws that provide similar benefits and may apply to smaller companies.

The Pregnancy Discrimination Act

The Pregnancy Discrimination Act of 1978 prohibits discrimination based on pregnancy, childbirth, or related medical conditions. This means employers may not condition or deny privileges of employment because a woman is pregnant, has given birth, or has medical complications related to motherhood.

A mother, or soon-to-be mother, therefore, should expect that prospective employers will not refuse to hire her because she is pregnant¹ or deny her promotions, pay increases, or other benefits. Moreover, she should not even be asked that question in a job interview because employers may not even consider her plans to become a mother, including her age and the very possibility that she may bear children.

The Family and Medical Leave Act (FMLA)

The FMLA requires that covered employers allow mothers to take up to 12 work weeks off for the birth, adoption, or foster care placement of a child. It also protects time off for a mother to “bond” with her child. Moreover, employers must allow mothers to continue their same health benefits as if they had never taken FMLA leave in the first place. And mothers should expect to be restored to the same position they had before taking leave, or an essentially identical position.

FMLA leave applies to public agencies, local educational agencies, and private employers who employ 50 or more employees in 20 or more work weeks. Mothers working for these employers who have worked with their employer for at least 12 months, have worked 1,250 hours during the past 12 months, and work at a location where 50 or more employees work (or within 75 miles of it) are entitled to FMLA leave.

Mothers, or soon-to-be mothers, can use FMLA leave for numerous reasons, not just for giving birth. They may be present for the birth of their child through a surrogate mother and they may take time off for the subsequent “bonding” period. Leave also applies to mothers engaged in adoption. So events in the course of adoption of children such as court appearances, counseling sessions, attorney and doctor consultations, physical examinations, and even traveling to complete the adoption all qualify as time mothers can take under FMLA. Leave also applies to situations in which a child is placed with a foster care. Mothers are permitted to take leave and spend bonding time with the foster child(ren) after placement occurs.

Special Considerations for New Children

A mother who takes leave to “bond” with a new child may only do so the first year after her child’s birth or placement. But time off does not have to be consecutive and continuous. A mother may take leave intermittently and, if her employer agrees, even use her FMLA leave time to work a reduced schedule. Additionally, mothers are entitled to 12 weeks for each FMLA leave year, which may overlap resulting in more than 12 weeks off in a standard 12-month calendar year.

Unfortunately, married individuals who work for the same employer may only take a combination of 12 weeks between the two of them, whereas unmarried couples who work for the same employer are not limited to this single 12-week restriction. Unmarried individuals both get up to 12 weeks of leave each.

Special Considerations for Nursing Mothers

Along with FMLA leave, employers with at least 50 employees are required to provide reasonable break times for a mother to express breast milk for her nursing child for one year after her child’s birth under the Fair Labor Standards Act (FSLA).² In so doing, employers must offer a reasonable location, other than a bathroom, for the mother to express milk. This lactation station must be shielded from the view of others and free from intrusion. Additionally, employers must provide reasonable break times in frequency and duration.³ But employers are not required to compensate mothers for time spent during lactation breaks expressing milk.

Additionally, employers with less than 50 employees can deny FLSA break time if it would impose an undue hardship in light of the size, financial resources, nature, and structure of the business. But if a mother feels her employer has violated the FSLA, she may file a complaint with the Wage and Hour Division or otherwise institute a cause of action and is shielded from any adverse actions taken against her by her employer because she filed a complaint.

Conclusion

Employers who cultivate a positive attitude towards pregnancy and families will find it natural to comply with this guidance, but all employers should be cautious, as the penalties for violating these and other statutes can be significant.

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¹ Pregnancy is also considered a disability under the Americans with Disabilities Act and therefore employers are likewise prohibited from discrimination under the ADA as well.

² Section 7 was amended by the Patient Protection and Affordable Care Act.

³ Employees who are exempt from section 7 of FLSA may still be covered under applicable State laws.

Featured Image by Rebecca Sidebotham