HR Minute

Pregnancy, the FMLA and ADA

The Family and Medical Leave Act (FMLA) is the primary statute affording pregnant employees the right to leave. The FMLA provides for up to 12 workweeks of unpaid job-protected leave to qualifying employees for pregnancy. Many employers may not be aware that in addition to rights under the FMLA, pregnant employees may also have rights under the Americans with Disabilities Act (ADA).

The ADA provides for pregnancy-related leave in limited circumstances. Specifically, a pregnant employee experiencing complications that limit a major life activity may be considered disabled under the ADA and entitled to its protections, including reasonable accommodations.

While the ADA does not automatically provide for pregnancy leave, employers should be aware of its protections and their obligations. The ADA prohibits employers from discriminating in all aspects of employment against qualified individuals because of disability and requires employers to reasonably accommodate disabilities if they can do so without suffering undue hardship.

To determine whether a pregnant employee is entitled to ADA protection, an employer must determine both (1) whether the individual is qualified and (2) whether she has a covered disability. Employers may have a duty to provide an accommodation such as providing additional leave, making facilities more accessible, restructuring the applicable job, or allowing a change in a work schedule.

A reasonable accommodation may include allowing an employee to telecommute. Employers that terminate employees after 12 weeks of FMLA leave may be violating the ADA as extended leave is a possible accommodation. This raises difficult issues because an employer may not know that a pregnant employee has a disability and there are no guidelines on the amount of additional leave an employer must give to a pregnant employee under the ADA.

Employers should review their policies and practices for granting leave and alternative work schedules to pregnant employees, especially when they take leave due to complications. Policies that require termination of a pregnant employee after a set period of time may violate the ADA.

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