Time Off for Baby: Know Your Rights
by Brette McWhorter Sember
Get more help planning your pregnancy leave through these resources.
• ACLU Women’s Rights Project, www.aclu.org/WomensRights/WomensRightsMain.cfm
• 9to5, The National Association of Working Women, 800-522-0925, www.9to5.org
• Equal Employment Opportunity Commission, 800-669-4000, www.eeoc.gov
• NOW Legal Defense Fund, 212-925-6635, www.now.org
• Wage and Hour Division, U.S. Department of Labor (if your rights have been violated under FMLA),
• Women Employed, 312-782-3902,
When planning your pregnancy leave from work, you need to get a handle on what laws apply to your situation and what benefits you’re entitled to. With so many options, understanding your legal rights with regard to employment discrimination and health insurance benefits during and after pregnancy is important.
You have an absolute right to work while you are pregnant. The federal Pregnancy Discrimination Act of 1978 (PDA) applies to businesses with 15 or more employees and states that an employer can’t refuse to hire you or promote you and can’t fire you because you’re pregnant.
Despite the law, problems happen. Ellen Bravo, director of 9to5 National Association of Working Women, warns, “Discrimination against pregnant women is still commonplace and often subtle.”
Your employer can’t require you to take a mandatory leave while pregnant or after the baby is born. If you wish to work during your preg-nancy (and right up to the birth), you must be allowed to. If you take a leave or go on disability during your pregnancy and then are able to return to work when your condition improves, your employer must allow you to return if you choose to.
If you believe you are being discriminated against, contact the federal Equal Employment Opportunity Commission or seek help from an attorney or a women’s rights group. (See sidebar.)
Your Risk, Your Choice
The U.S. Supreme Court has ruled that women are the only ones who can make decisions about risks to their unborn babies. This means your employer cannot remove you from a position deemed “dangerous” because you are pregnant.
If your job involves exposure to chemicals, radiation, loud noises, extreme temperatures, smoke or other environmental conditions that can cause harm to you or your baby, you should discuss the work conditions with your doctor and decide if continuing is safe. However, your employer cannot require you to leave your position.
If you are temporarily unable to do your job because of your pregnancy and your doctor agrees, your employer must give you alternate tasks or allow you to take a disability leave or a leave without pay.
The Health Insurance Portability and Accountability Act (HIPAA) requires that an employer who provides health insurance must cover pregnancy and birth-related medical costs in the same way other medical conditions are covered. An additional or extra deductible or separate pay schedule that applies to pregnancy or birth is illegal.
Generally you are considered “disabled” if you are medically unable to perform one or more of your job duties. Many companies have their own disability insurance policies. If your doctor certifies that you are unable to continue working due a pregnancy-related condition or due to the birth itself, you can use your company’s disability leave.
Your condition must be treated in the same manner in which other conditions are treated. So, if your employer provides for paid leave for other medical conditions anything from heart disease to a broken leg it must provide for paid leave for pregnancy. If your company has an official policy but has bent the rules in the past for other people for any kind of disability (for example, allowed employees with cancer to take extended leaves), then the rules must be bent for you.
This law is a double-edged sword. If your employer has a policy of firing employees who take excessive absences, you can be fired if you are consistently absent (for example, for morning sickness or prenatal appointments). You can also be required to obtain a second opinion from a doctor of your company’s choosing in evaluating your disability.
A woman is usually considered “disabled” for six weeks after a vaginal birth and for eight weeks after a C-section birth, but this can vary with a doctor’s certification.
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) applies to you if you work for a public agency (federal, state or local) or for an employer with 50 or more employees and if you have been employed there at least 12 months and worked at least 1,250 hours in the last 12 months.
You may take up to 12 weeks of unpaid leave in a 12 month period for pregnancy, post-pregnancy recovery, or to care for a new baby. (The law also allows leaves to care for ill family members and for adopted children.) You can take this time off as one big block, or you can take it in pieces. Thirty days notice is required for foreseeable events (birth is foreseeable, but things like bed rest during pregnancy aren’t).
Under FMLA, your employer must keep your health benefits in place (but you may have to pay premiums) while you are gone and must restore you to original job or equivalent job with equivalent pay when you return. Your employer cannot penalize you for taking the leave.
If you and your spouse work for the same employer, you are entitled to a total of 12 weeks unpaid FMLA leave divided between both of you in a 12-month period to care for your child.
If your employer offers personal or vacation time, you can choose to use this time in addition to the other time off if you have accrued it and if you give the required amount of notice. You can be required to use paid vacation time concurrently or prior to your unpaid leave time.
If your leave overlaps calendar years, you need to make sure your employer does not require you to use vacation or sick time first in the new year before continuing with FMLA or state pregnancy leave time.
If you are employed by a company with fewer than 50 employees, you are not covered by FMLA. Find out if your company has a policy about pregnancy leaves or if your state or municipal laws cover pregnancy leave.
Ask your employer what you can work out. Find out if you can use accumulated paid sick and vacation days for pregnancy, childbirth and childcare. For an unpaid leave, negotiate how much time you think you will need and check in occasionally with work to let your employer know your status. You might want to come back earlier or later than you originally thought.
If you are self-employed, you don’t qualify for state disability payments. You can take out a private disability insurance policy that will pay you during the time you are certified as disabled by your health care provider. You must obtain this policy before becoming pregnant.
Choosing a pregnancy leave requires weighing your options, emotional needs and financial situation. With a little thought and creativity, you can find a solution that works best for you and your growing family.
Brette McWhorter Sember is a former attorney and author of Your Practical Pregnancy Planner (McGraw-Hill, $14.95).