Tuesday, June 14, 2011

The law with regard to pregnancy and child care: an overview

The following is written by one of NOW's founders, who was also the first woman attorney in the Office of the General Counsel at the Equal Employment Opportunity Commission. 

Sonia Pressman Fuentes on Pregnancy Leave, Parental Care Leave, and the Law

Laws with Regard to Pregnancy and Childbirth (as of June 10, 2010)

    One of the early questions the Equal Employment Opportunity Commission (EEOC) faced after it commenced operations on July 2, 1965, was what the prohibition against sex discrimination in employment meant with regard to pregnancy, childbirth, delivery, and post-delivery for applicants for jobs and employees. The principal issues were:

    1. Could an employer refuse to hire a qualified applicant who was pregnant?

    2. Could an employer fire an employee because she was pregnant?

    3. What rights did an employee have during pregnancy, delivery, and post-delivery with regard to sick leave and other leaves of absence and benefits in connection with such leaves?

    The answers were:

    1. An employer could not refuse to hire a qualified woman applicant who could perform the job involved simply because she was pregnant, and

    2. Employers must permit pregnant employees to do their jobs for as long as the employees are capable of performing their jobs.

    The crunch came in deciding the third question: What rights did a pregnant woman have with regard to sick and annual leave and benefits in connection with pregnancy, childbirth, and post-delivery?

    In 1972, I drafted the Commission's guidelines on pregnancy and childbirth, which stated that each covered employer would need to provide the same sick leave and other leave and benefits to women during pregnancy, delivery, and after-delivery as the employer provided to employees generally who were either sick or needed time off for other reasons.

    In 1978, the Pregnancy Discrimination Act (PDA) became law. It amended Title VII by basically incorporating the Commission's guidelines on pregnancy and childbirth. To this day, very few people understand the guidelines and their later incorporation into the PDA. I, therefore, made my own formulation of what Title VII provides.

    There are three relevant periods in connection with leave and pay related to pregnancy under Title VII:
    1. Pregnancy;
    2. Delivery; and
    3. Post-delivery.

    During the short period of no. 2, above (Delivery), a woman is clearly temporarily physically disabled and is entitled to whatever benefits (leave, pay, etc.) the employer provides for employees generally who are temporarily disabled. (What the woman would be entitled to would probably be related to her length of employment.) During 1 and 3 above (Pregnancy and Post-delivery), if the woman is temporarily disabled due to her pregnancy, she is also entitled to whatever benefits (leave, pay, etc.) the employer provides for employees generally who are temporarily disabled. (Of course, if, during these times, she is temporarily disabled for reasons not connected to her pregnancy, she would also be entitled to the employer's regular sick leave and sick pay benefits.) During pre- and post-delivery, if the woman is not sick or physically unable to work, but wants time off to prepare for the birth of her child or to care for the child, she is entitled to whatever benefits the employer provides to employees generally who want time off for personal reasons. With regard to time off pre- and post-delivery, one cannot look only at what is written employer policy. One must investigate what the employer has actually done with regard to employee requests for time off for personal reasons. (I don't know how far back in time one would go to determine this.) One would need to investigate what the employer involved has actually done vis-à-vis time off and benefits for employees who sought time off for reasons such as visiting a relative, taking an educational course, or engaging in other personal activity.

    There is another federal law that comes into play with regard to the rights of pregnant women and that is the Family and Medical Leave Act (FMLA), which President Clinton signed into law in February of 1993. That law requires employers to provide their employees with up to twelve weeks of unpaid, job-protected leave each year in connection with the birth or adoption of a child, the serious illness of a child, spouse or parent; or the inability of the employee to work because of a serious health condition. A woman's disability in connection with pregnancy or her desire to take time off before or after the delivery of a child are conditions that would be covered by this act.

    The U.S. and Australia are currently the only developed economies in the world that provide no paid maternity leave. Starting on January 1, 2011, when Australia's law on parental leave becomes effective, the U.S. will be the only such country.

    In 2002, California pioneered the first paid family leave law in the country and some other states are looking at similar proposals. There is a campaign spearheaded by Momsrising.org to get legislation enacted on the state level (1) mandating paid maternity and paternity (or family) leave and also (2) strengthening unpaid leave laws in the eleven states that have such laws. Five states-California, Hawaii, New Jersey, New York, and Rhode Island-and the Commonwealth of Puerto Rico provide, or require employers to provide, short-term disability insurance benefits, all of which pay benefits for pregnancy, childbirth, and related disabling medical conditions.

    Minnesota and New Mexico have active at-home infant care (AHIC) policies that provide eligible, lower-income working parents with additional income to help them defray the cost of staying home with their newborns or newly-adopted children. Montana enacted a statute creating an AHIC program, but the legislature has not yet provided funding.

    In a related area, there are currently no federal or state laws requiring employers to provide sick leave benefits to employees. There is proposed federal legislation, the Healthy Families Act, which would guarantee employees a certain number of paid sick days a year to recover from an illness or care for a sick family member. The National Partnership for Women and Families, the Institute for Women's Policy Research, and Momsrising.org are campaigning for passage of the Healthy Families Act and other legislation on state and city levels.

    In two U.S. cities, San Francisco and Washington, D.C., there are laws that require certain employers to offer paid leave, and in Milwaukee a referendum passed requiring employers to offer certain numbers of paid sick days per year to employees. New York City is currently considering such legislation. It does not appear, however, that the Healthy Family Act and these city laws requiring paid sick leave apply or would apply to disability in connection with pregnancy and childbirth.

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