What to Expect When Your Employee Is Expecting

Alfred T. DeMaria

Pregnancy - a routine event, for sure, but often a challenging one for company executives. Managers need to get it right from the start, and, by the way, you're not getting the jury's sympathy if one of your pregnant employee’s cases finds its way into a courtroom.

Although, no company manager, male or female, ever intends to discriminate against pregnant employees, problems on how to handle pregnancies continue to arise that caused employees to pay out expensive settlements. In New York, employers with only four employees are covered by the pregnancy discrimination statutes. Here is a brief outline of the requirements:

  • Refusing to hire a woman because she is pregnant. While this requirement appears easy to meet, if an obviously pregnant woman (or one who tells you that she is during a pre-employment interview) you must be sure that you document every reason for not hiring and be prepared to defend why it is that another non-pregnant employee (or a male) was hired instead.
  • Firing or forcing a worker to leave because she's pregnant

There are other obligations:

  • A pregnant employee must be allowed to keep her job as long as she is able to perform her duties
  • Where management determines to hire the replacement worker who does a supervisor job as compared to the employee on leave, this is one of the most troubling (but often-occurring scenarios) and must be reviewed by employment counsel.
  • You cannot regulate how much time an employee must take off work either before or after childbirth if she is able to do her job.
  • You must treat a female employee who has recently had a baby the same as other employees dealing with other types of medical conditions.
  • You may not take away credit for previous years worked, accrued retirement benefits, or seniority because of maternity leave.

What should you do if an employee's pregnancy prevents her from performing all of her job duties?

You must treat an employee who has recently given birth at least as well as you treat other workers who cannot do their jobs for a short period of time. For example, if you permit a worker to go on paid or unpaid leave because of a heart attack or a broken leg, you must offer that arrangement to a worker who needs time off for childbirth (or pregnancy).

Also, you must hold the new mother's job for her at least as long as you would hold open a position for an employee who is out on sick or disability leave and be prepared to document how you have treated other employees.

If your company offers other workers easier duties for a limited time when they cannot do their regular jobs, then you must offer the same accommodation to pregnant workers.

There are other nuances to dealing with pregnant workers not covered in this bulletin, so it is wise to carefully review all employment decisions affecting any pregnant workers or one who has recently given birth to a child.

This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.