CEDR Two Minute Trainer: 10 Tips for Safely Navigating Maternity Leave of Absence

As employers, all of us, at one point or another, will have an employee who is or becomes pregnant and needs to take a Maternity Leave of Absence (LOA).

In fact, some of the most frequently asked questions we get here at CEDR Solutions revolve around what an employer is required by law to provide to their pregnant employees.

Common Maternity Leave of Absence concerns include:

• length of leave
• paid vs. unpaid
• holding a position open
• reinstatement
• what to do in the event that the position is eliminated in the interim

Let’s start by saying that the issues and policies surrounding maternity leave are a prime example of what we call “dovetailing.” Dovetailing means that your maternity leave policy is affected by:

• other policies you create
• your past practices or what you did in other similar circumstances
• state and federal rules, regulations, and laws that govern the policies you adopt

You should also keep top-of-mind that in the U.S. pregnancy discrimination claims lead the EEOC’s list of complaints investigated. In fact, there is no better client for a contingency fee attorney to represent than the ones who are protected by public policy.

Maternity leave of absences aren’t just about the time away. Here are 10 things you need to remember:

1. You CANNOT ask an employee to give you a note from her physician certifying it’s OK for her to continue working, but you CAN require certification of the need for leave. In addition, you CAN require certification that she is OK to return to her duties after the LOA.
2. No federal law requires an employer with less than 50 employees to grant a LOA. However, anti-discrimination laws in almost every state do require you treat a pregnant employee like any other temporary medical disability. NOTE: There are a few states and municipalities that have stricter rules, and once you get to 50 employees, the FMLA kicks in, requiring 12 weeks of leave.
3. When you don’t create a LOA policy for your office, you will generally be held to a “default” standard based on your past habits and practices instead. This means you lose the significant protections that a properly written policy can provide you.
4. You should have a general statement in your employee handbook informing all employees of any potential dangers or toxins in the workplace, and that they must determine, together with their physician, whether or not they should continue to work. If working around any potential dangerous substance is required for the position, be sure this is included in an updated job description for the position.
5. You should include a policy that says if the employee plans to return to work from maternity LOA, she must let you know the date she plans to return, and to keep you informed of any changes.
6. Your policy should address what happens if the employee fails to come back on the date she says she will. You should also address under what conditions the employee can ask for an extension.
7. You need to cover what happens if you downsize the company and her position becomes unavailable. This is treacherous ground, so don’t try it alone.
8. You need to address the accrual of benefits, bonuses, etc., while the employee is out.
9. You should never force a pregnant employee to take off early out of a sense of paternalism, protection, or thinking you are doing a good deed. The old adage about “no good deed” applies here.
10. Finally, there are correct methods for addressing employees who are not performing, including employees who are pregnant. Never guess at this one.

Remember, pregnancy discrimination claims are leading the pack with the EEOC. Employers are incredibly and increasingly vulnerable to lawsuits and settlements in this area.

Think you’re too small to be targeted? Don’t be so sure. One of the nastiest pregnancy discrimination demand letters we’ve ever seen came into a practice with five total employees. Think you’ll just deal with it if and when it happens? That’s not a defense – that’s a reaction, and not recommended.

If you have questions about any of the tips above or want clarification on which ones would apply to you, call us at any time at (866) 414-6056 or email us at info@cedrsolutions.com. We will discuss your questions with you and help you find a comprehensive solution.

Worried that your employee handbook might be missing some crucial LOA policies? Get your handbook evaluated by CEDR’s experts! We’ll review it for 40 critical areas and over 100 details and give you an honest evaluation on its ability to protect you and your practice from lawsuits. Send us your handbook via email to eval@cedrsolutions.com with the word “Evaluate” in the subject line. Make sure to include your name, number of employees, state, best number to reach you and type of business you are in.