Contributed by Caryl Flannery
A pregnant employee can strike terror in the heart of an employer. Facebook COO Sheryl Sandberg, author of the “Lean In”, would encourage you to initiate a frank conversation with the employee about how her pregnancy and new family status will (or will not) affect her career. Your employment law training may have taught you not to acknowledge the pregnancy in any way, but at the same time you’ll need to have some type of conversation about it to comply with the FMLA. Do you have to make accommodations if her doctor says she has physical restrictions? How should her absence be considered when making decisions on annual bonuses?
Legal and logistical issues
Navigating through an employee’s pregnancy can be very tricky with laws that conflict and change on both the state and federal level. A normal pregnancy with typical symptoms such as fatigue is not considered a “disability” under the Americans with Disabilities Act, so there is no obligation to accommodate requests for leave, light duty, etc. under that statute. On the other hand, certain pregnancy-related conditions or complications, such as gestational diabetes, will be viewed as disabilities that require reasonable accommodation. To further muddy the waters, pregnancy is treated as a “serious health condition” for the Family and Medical Leave Act, meaning that covered employers must provide eligible employees with up to 12 weeks of leave in connection with a normal pregnancy and birth, including time off for prenatal doctor visits. Paid leave may be required in California, New Jersey, or Rhode Island, and a few major cities. As pregnancy is a protected status under the discrimination laws, negative employment decisions based on unfounded assumptions or prejudices related to the employee’s pregnancy are unlawful.
The Big Picture
The bigger issue is the message about pregnancy and childbirth that your business in sending to its employees. If you engaged in a “lean in” type conversation with a pregnant employee would she feel threatened or relieved? Do you have a specific open door policy designed to encourage employees to discuss how parenting issues could affect their employment and opportunities for advancement? Are male employees encouraged to “lean out” to participate in child rearing or is the focus solely on your female employees?
The more comfortable an employee feels discussing pregnancy issues, the less likely you are to encounter problems with leave, accommodation, and discrimination. Maintaining an open and trusting atmosphere could mean that an employee reveals her pregnancy at eight weeks rather than six months, leaving you more time to plan for her absence. Honest, up-front communication about career options may be the difference between retaining a hardworking, well-trained employee and having to start from scratch with an unknown entity.
Bottom Line: While confronting a young female employee about her child bearing plans is still not recommended, creating an environment conducive to reasonable, honest discussions about the opportunities and challenges for working parents in your organization is a good move legally and administratively.