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New Hampshire FMLA

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I’m the president of a large company in

New Hampshire, with a number of pregnant employees. To make scheduling easier, I’d like to institute a company policy that all pregnant women have to start maternity leave 1 month before their due date, and end it 2 months after their due date. Can you think of any reason why I shouldn’t do this?

Unfortunately, the policy you are proposing is a violation of federal law.

Under the federal Family and Medical Leave Act or FMLA, an eligible employee of either sex is entitled to up to 12 weeks of unpaid job-protected leave when their child is born. The FMLA applies to businesses nationwide with 50 or more employees. It also covers leave for a number of other personal or family situations.

In this case, the timing of the leave is determined by the pregnant woman and her doctor…not by the employer. Many women will want to work longer before the baby is born, so that they can spend more time at home with the child after the birth. Others may have pregnancy complications that require them to stop working earlier – or, they may simply make a personal choice to take some time off before the birth.

The Pregnancy Discrimination Act (or PDA) also specifies that a pregnant employee who wants to continue to work must be permitted to do so, as long as she is physically able. This federal law is part of Title VII of the Civil Rights Bill of 1964, and applies to employers nationwide with 15 or more workers.  This includes businesses, state and local governments. This law specifically says that “an employer may not institute a rule that prohibits a woman from returning to work for a predetermined length of time after childbirth.” In other words, if a new mother wants to return to work, and she is physically able to perform her duties, you cannot legally prevent her from doing so.

The PDA requires that employers treat maternity leave exactly like any other temporary disability leave. Many employers routinely require that an employee returning from disability provide a doctor’s release to return to work. Employers are well within their rights to do the same for an employee on pregnancy disability. If an employee wants to return to work three days after giving birth, but she cannot provide a doctor’s release, the employer is within his or her rights to decline. However, as long as an employee has a doctor’s release, she must be allowed to work.