Concluding this six-part series with a look at complex post-pregnancy leave and accommodation issues employers regularly face
When Congress passed the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA) and the Family and Medial Leave Act (FMLA), it considered them as needed protections for clear-cut situations. For example, when an employee of a large company needs maternity leave, it seems fair and obvious she should have time off for childbirth and bonding without losing her job. The employer’s obligation is straightforward—the employee receives 12 weeks of FMLA leave and then returns to work happy and productive. Unfortunately, the laws’ clear directions begin to unravel in real life applications, leaving grey areas for courts to interpret (often inconsistently). Consider the following examples:
Scenario 1 : A superstar employee, who has only worked for the company for eight months, has a baby. Her doctor says she cannot return to work for at least six weeks after giving birth. Here, the employee does not qualify for FMLA, but likely has medical restrictions that qualify as a disability, albeit temporary, under the ADA, so the employer must consider leave as a reasonable accommodation. Is six weeks of leave reasonable? Is the same six weeks of unpaid leave reasonable for a poor performing, newly-hired, male employee who injures himself in a dirt bike racing accident? The law suggests that these two employees must be treated the same. So, is six weeks of leave a reasonable accommodation across the board? Is seven weeks? Twelve weeks?
Scenario 2: An employee returns to work after a 12 week maternity leave, and two months later her child is diagnosed with a serious medical condition. The employee has no additional FMLA leave and the ADA does not apply because it is not her medical condition. The employee, however, has a real problem—she has a seriously sick newborn, which becomes the employer’s dilemma. The employer can terminate the new mother, who then has to come up with enough money for her COBRA premiums so her baby will still get the needed medical treatment OR give the employee additional time off and establish a precedent it must later follow to avoid a discrimination claim.
Scenario 3 : A long-term employee (who qualifies for FMLA) is placed on bed rest during her fifth month of pregnancy. She expects to exhaust FMLA before she reaches full term and will then need at least six weeks to recover before she can return to work. During her bed rest, you discover that her temporary replacement, who is paid much less, is a much better employee.
These delicate balancing acts require the employer to balance sympathy and kindness with consistency. They beg the question: Where do you draw the line?
As an initial matter, under the PDA you must treat pregnancy-related conditions the same as any other medical conditions. So, in Scenario 1, if you provide leave for the dirt bike racer you must provide leave for the new mother, even though neither employee has FMLA rights. However, don’t forget your non-pregnant employees have rights as well. Under both Scenarios 1 and 2, if you provide leave for the new mother, Title VII may dictate that you treat the dirt bike racer or any other similarly situated male employee the same way or risk a sex discrimination claim.
Second, with that consistency baseline in mind, employers must consider how much leave is reasonable under the circumstances. If the leave is a couple of weeks, it is unlikely the employer could backfill the position in that amount of time. This “replacement time” test provides a reasonable measuring stick for how long is long enough. Note, this is not the legal standard under the ADA—there is no measuring stick under the law—this is simply a means of determining what amount of time may be reasonable. In some situations, little or no leave is reasonable. In others, an employee could argue that allowing her to remain out for an extended time would create little or no cost and no hardship to the employer.
Third, don’t guess how much time the employee will need. This sounds obvious, but in Scenario 3, employers often assume that the employee will be on bed rest for the remainder of the nine months or will have increasing restrictions and jump the gun on denying leave or filling the job. Ask the employee to provide information from her doctor about how long she will need the accommodation, including leave. If the doctor cannot provide a clear answer, it is less likely that an accommodation will be reasonable because few employers can provide indefinite leave. Always follow the doctor’s restrictions. Remember, with pregnancy, the length of absence for bed rest is not automatically the remainder of the nine-month gestation—the child could be born early or be lost during child birth. Making a determination based on estimated time off, particularly while an employee has FMLA leave remaining, is rarely a good idea.
Finally, develop a policy and stick with it. A decision that tracks your policy, applied evenhandedly and consistently, will help establish the reasonableness of the decision and avoid a claim of discrimination. Keep in mind that the reverse can also be true: An overly generous policy that sounds good when a committee puts it on paper, such as extended leave in addition to FMLA, can limit the employer’s options and require the employer to allow long periods of time off, even in situations where it does not appear warranted.
Republished with permission. This article first appeared in Inside Counsel on May 19, 2015.