Human Resource Blog

Questions about ADA law and how it relates to maternity leave

Hi. I am employed in a small business of 15 people. I have taken it upon myself to make an employee handbook. I have no training in HR but am learning as fast as I can. I want to have a maternity leave policy. Based on employees with previous maternity leaves, I think up to 8 weeks unpaid leave is what my boss and I will go with. My questions are 1.) If we give an employee 12 weeks unpaid leave for maternity do we have to offer that to all employees to be fair? 2.) If we have an employee who, say, had to go through chemo for cancer and they went on disability leave during that time and came back after 10 weeks, then do we have to offer 10 weeks as standard unpaid maternity leave as well? I am trying to understand the relevant connection between ADA requirements to the small business and maternity leave policy. My boss thinks if we simply do not have a written policy on maternity leave but more verbal policy on a case by case basis that we will avoid any issues with the law. Ha ha ha. He is funny. I’m pretty sure it is better to have a written policy that is enforced fairly is the best way to go on this matter.

Kudos to you for taking on the task of developing an employee handbook! You are 100% correct that it is always better to have established policies in place, rather than deciding things on a case by case base. In HR matters, consistency and following your own policies is the name of the game.

There are several issues to address here. First, the Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide reasonable accommodations for qualified individuals with a disability. Pregnancy, in and of itself, is not considered a disability and thus does not meet the standard for protection under the ADA unless there are complications that result in disability. This would include such impairments as gestational diabetes, preeclampsia, high blood pressure, etc.  Under ADA, a leave is a possible accommodation, but this would be determined after going through the required interactive process with the employee to determine the type of accommodation that is needed.

Secondly, the Pregnancy Discrimination Act (PDA) also applies to employers with 15 or more employees, and prohibits discrimination based on pregnancy or childbirth. PDA requires that employers treat pregnant women the same as they would treat any other employee who is temporarily unable to perform his or her job due to a medical condition.  If an employer provides a sick or short-term disability leave for other ailments, then they must do the same for pregnancy-related medical conditions.

Finally, you do not mention the state you are in, but be aware that in addition to the federal statutes, there are state-specific leave laws that mandate various amounts of family/medical leave; in some cases the leave time must be paid.

You are wise to look at how leave requests have been handled in the past when establishing your policies. However, if in reviewing the past you find some inconsistencies that you now wish to correct, you may certainly do so. Be sure to notify all employees of the new policies so they know how leave requests will be handled going forward.