For pregnant employees not covered under FMLA, are employers obligated by law to allow for no penalty intermittent absences due to pregnancy issues? May an employer count the time away from work as absences as stated under the company’s attendance policy?
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Thank you for your inquiry regarding intermittent pregnancy leave for an employee who is not covered by FMLA.
Because this employee would not be covered by FMLA, the employer’s responsibilities would be those as required by the Pregnancy Discrimination Act (PDA).
The PDA applies to employers with 15 or more employees and it protects pregnant employees from discriminatory actions that are based on the status of pregnancy. Specifically, the PDA requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work. The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits).
Thus, though the PDA does not require employers to provide pregnancy leave, if another employee who had a similar ability or inability to work based on something other than pregnancy would be allowed to take no-penalty intermittent absences, then these same benefits must be offered to the pregnant worker.
On the other hand, if all employees would be treated the same, as covered by the company’s attendance policy, then this policy may be applied to pregnant workers, too.
Some states have additional laws that provide protection to pregnant employees and/or that provide family or maternity leave to smaller employers. For more information, visit HR.BLR.com.
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