Federal and state laws governing pregnancy and adoption-related employment issues generally fall into two categories – prohibitions against adverse employment actions and rules covering pregnancy-related leave.
Pregnancy-related leave issues are addressed under the Pregnancy Discrimination Act (PDA) – which amended Title VII of the Civil Rights Act of 1964 (Title VII) to recognize pregnancy-based discrimination as a form of sex discrimination, the Family and Medical Leave Act (FMLA), and, in limited circumstances, the Americans with Disabilities Act (ADA). The laws govern how pregnant employees should be treated when they're unable to work because of their pregnancy. Many states also have discrimination, pregnancy leave, and family and medical leave laws.
Pregnancy and the Family and Medical Leave Act
New fathers and mothers who are covered by the FMLA are entitled to leave – up to 12 weeks per year – under a variety of circumstances, including leave for the birth, adoption or foster care of a child. It’s illegal to punish an employee in any way for taking FMLA leave. If you aren't an FMLA-covered employer or the employee either isn't eligible for or has exhausted her FMLA leave, you still may have an obligation to provide the leave under Title VII as amended by the PDA.
When both husband and wife work for the same employer, the full amount of leave is limited to an aggregate of 12 weeks for the birth, adoption, or foster care placement of a single child or to care for a parent with a serious health condition.
Pregnancy and the Americans with Disabilities Act
In most cases, the ADA won't be a factor in how much leave an employee may take for pregnancy or maternity leave. Pregnancy in and of itself isn't a "physiological disorder" and therefore isn't an "impairment" under the ADA. However, pregnant employees who suffer from severe pregnancy- or birth-related complications may be covered by the ADA if their medical complications substantially limit a major life activity
Safety Issues and Pregnancy
Employers may have concerns about the safety of their pregnant employees and the unborn fetuses, but those concerns shouldn't be translated into formal or informal workplace policies applied to all pregnant employees. Banning women from work environments to which men have access, even for the seemingly noble purpose of protecting the unborn fetus, is a form of sex discrimination. Similarly, you may not force pregnant employees to take leave based on a real or imagined threat to the fetus' health.
Adoption and Foster Placement
Employees can take up to 12 weeks of FMLA leave after a child is placed for adoption with them. This includes an employee adopting his own stepchild and foster parents when a child is placed in their home.
Before a child is placed in an employee’s home, you must allow the employee to take intermittent leave as needed for activities that are needed to complete the adoption. After placement, you aren’t required to give the employee intermittent leave to care for the newly adopted or foster child (unless the child has a serious health condition).
You can give maternity leave that’s more generous than the FMLA’s minimum but beware of giving better leave to new mothers as compared to new fathers and employees with other health problems. That could cause resentment and a sex discrimination charge from a man.
The Affordable Care Act (ACA) requires that most employers provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time the employee has a need to express milk. You must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The break time can be unpaid.
Smaller employers with fewer than 50 employees are exempt from the break time rule only if the employer can demonstrate that compliance with the statute would cause the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” These provisions do not preempt a state law that provides greater protections to employees.
Many states require employers to make an effort to provide a room where employees who breastfeed their babies can express milk at work. Even if this isn’t required in your state, it could help employee retention.
Flexible Work Schedules for Work/Life Balance
New parents may ask for nontraditional working arrangements to allow them more flexibility to better balance their work and life responsibilities. These arrangements might include telecommuting, part-time employment, a flexible schedule, or job sharing.