The Family and Medical Leave Act (FMLA) does not apply to pregnant new employees, but Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act (PDA) does, according to Megan Norris, an attorney with Miller Canfield in Detroit.

“A new employee will not be covered by the FMLA since she will not have her year in, so what the employer will have to do affirmatively in terms of time off will be determined primarily by the company’s time-off policies, including any disability policies,” she told SHRM Online.

“In general, an employer does not have to do anything special. For example, there is no duty to accommodate a routine pregnancy under the Americans with Disabilities Act (ADA), although there may be a duty to accommodate if there are complications,” she added. “But if the employer has the ‘how dare she, she knew she was pregnant and wouldn’t be able to work’ reaction, there will be a problem. The employer will have to treat the employee the same way it would treat an employee who suddenly had a heart attack.”

Norris noted that “if the employer would grant sick leave or disability leave for another employee with a medical need, it will have to do so for the pregnancy if medically necessary.”

But she said that “newborn leave is entirely different. That is not gender-specific. Both men and women can take birth or adoption leave under the FMLA. If the employee is new, and therefore not covered by the FMLA, there is no requirement to grant such leave unless it is required under state law.”

“The key to navigating the tricky issue of having a newly hired pregnant employee is to be fair and consistent in the application of company policies,” added Gregory Bulgrin of the Chicago office of Fisher & Phillips. “If a company modifies temporarily disabled employees’ job tasks during the duration of temporary disabilities, the pregnant employee should be provided a modification to the same extent as other temporarily disabled employees. If a company allows leave for personal reasons or short-term disability leave, newly hired pregnant employees should be allowed the same leave opportunities as other newly hired temporarily disabled employees,” he remarked.

Minimum Length-of-Service Requirement

“While Congress clearly understands that businesses have legitimate business reasons for requiring employees work for a company for a specific length of time before being eligible for FMLA leave (otherwise, it would not have included the 12-month/1,250 hours requirements), the Equal Employment Opportunity Commission’s (EEOC) regulations and stances on both the PDA and the ADA threaten to eliminate any employer’s ability to dictate its own business judgment regarding how long an employee must have worked for the company before the company invests in that employee by way of a leave of absence,” commented Kelly Hughes, an attorney with Ogletree Deakins in Columbia, S.C.

She said, “Thankfully, some recent court decisions have supported these neutral minimum length-of-service requirements,” citing Anderson v. Cato Corp., No. 11-3003 (10th Cir. 2011) which was decided Oct. 27, 2011.The 10th U.S. Circuit Court of Appeals ruled that a pregnant employee’s termination because of inability to work and ineligibility for a leave of absence according to the company’s requirement that the person be employed for 365 days was a legitimate, nondiscriminatory reason for termination and did not establish pregnancy bias. “I believe the key to that decision and others supporting employers and their minimum length-of-service requirement is an evenly applied policy,” she said. “However, no matter how evenly the policy is applied, the EEOC will likely challenge it.”

“An employer may be understandably concerned about possibly hiring an employee only to lose her to leave soon thereafter but must not resort to treating that employee more harshly or name calling or any other inappropriate actions based on the pregnancy,” cautioned Jon Yarbrough, an attorney with Constangy, Brooks & Smith in Asheville, N.C.

“On the flip side, the employer should not take steps that are protective of pregnant women. The employer should not transfer the pregnant employee to a less-demanding job based on some belief that the more demanding job may harm the employee or her pregnancy,” he added. “The employer cannot force the employee to take leave or keep the employee out a certain amount of time after birth.”

State Laws

In addition to the federal laws, some states have laws providing employees with the statutory right to take leave.

For example, California has a Pregnancy Disability Leave Law that applies to all employees regardless of time worked. The law provides up to four months of job-protected leave.

In Connecticut and Hawaii, employers cannot refuse to grant a reasonable leave of absence for an employee who is disabled as a result of pregnancy, Yarbrough noted.

“When making an employment decision regarding a pregnant employee, it is important for employers to research state and local laws to determine whether the company is covered by the state or local law and what additional protection beyond federal law, if any, the state or local law affords employees,” Bulgrin said.