Employment Issues Related to Pregnancy, Birth and Nursing

United States (federal)

The major federal laws that afford workplace protections and employment rights for workers who are pregnant or nursing are:

• The Trial Division of the High Court of American Samoa has held that its territorial public policy prohibits employment discrimination on the basis of pregnancy. Nguyen v. Daewoosa Samoa, Ltd., 7 Am. Samoa 3d 171 (Am. Samoa 2003).
• The Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer. While pregnancy is not a disability in and of itself under the ADA, some pregnancy-related conditions may be disabilities under the law. 42 U.S.C. § 12101, et seq.
• The Pregnant Workers' Fairness Act requires all private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations to make reasonable accommodations for known limitations related to the pregnancy, childbirth, or related medical condition of a job applicant or employee, unless doing so would impose an undue hardship. 42 U.S.C. § 2000gg, et seq.
• Under the Fair Labor Standards Act (FLSA), which includes the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), most employees (with the exception of certain airline, railroad, and motorcoach carrier employees) have the right to take reasonable break time to express breast milk for their nursing child for up to one year after the child's birth. Covered employees must be provided with a space, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, to express breast milk. Employers with fewer than 50 employees are not subject to the FLSA break time and private space requirements if compliance with the provision would impose an undue hardship. 29 U.S.C. § 218d.
• The Pregnancy Discrimination Act [1978]    
  What is covered?    
  The PDA amended Title VII of the Civil Rights Act of 1964 to make employment discrimination on the basis of pregnancy, childbirth or related medical conditions constitute sex discrimination under Title VII. Women who are pregnant or affected by pregnancy-related conditions must be treated in the same manner in all terms and conditions of employment as other applicants or employees with similar abilities or limitations.   
  Who is covered?    
  The PDA covers the same employers and employees as Title VII of the Civil Rights Act. Terms and Conditions of Employment: This law prohibits an employer from refusing to hire a woman because of a pregnancy-related condition as long as she is able to perform the major functions of her job. It also prohibits an employer from treating an applicant or worker differently on the basis of pregnancy, childbirth or a related medical condition, for any employment purpose.
• Pregnancy and Maternity Leave: An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires all of its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.    
  If an employee is temporarily unable to perform her job because of her pregnancy or a pregnancy-related condition, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.
• Health Insurance: Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. An employer need not provide health insurance for expenses arising from abortion, except where the life of the mother is endangered by the pregnancy or where medical complications have arisen from an abortion.   
  Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis. The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased or larger deductible can be imposed.
• Fringe Benefits: If an employer provides any benefits to workers on leave, the employer must provide the same benefits to those on leave for pregnancy-related conditions.   
  Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees with respect to accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.   
  For additional information see the U.S. Equal Employment Opportunity Commission. The EEOC recently issued new enforcement guidance regarding pregnancy discrimination and related issues. In particular, the guidance addresses the PDA as it applies to pregnant workers. See: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.   
  Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a job for a pregnancy-related absence the same length of time they would hold jobs open for employees on sick or disability leave.

Notes:

• Federal law requires that women affected by pregnancy, childbirth or related medical conditions be treated the same as other persons not so affected but similar in their ability or inability to work for all employment-related purposes, including receipt of benefits under fringe benefit programs. See 42 U.S.C. § 2000e (k). Also, this page only addresses state laws; county, city or other local laws may provide additional sources of protection.
• Effective 2010, the Patient Protection and Affordable Care Act amended Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. § 207) ("FLSA") to require that employers provide a nursing mother reasonable break time to express breast milk for one year after the birth of her child. The law does not require that this time be compensated. The amendment also requires that employers provide a place, other than a bathroom, for an employee to express breast milk. Note that certain workers who are exempt from Section 7 of the FLSA are not covered by this amendment. Also note that the amendment does not preempt state laws that provide employees with broader protections (for example, compensated break time, break time for exempt employees, or break time beyond one year after the child's birth). For more about the FLSA's break time requirement, see http://www.dol.gov/whd/nursingmothers/.
• Forty-six states, plus the District of Columbia and the U.S. Virgin Islands, also allow women to breast feed in public places or in places of "public accommodation", even if those jurisdictions do not require employers to make accommodations for breastfeeding employees. We have not included those laws here.