Pregnancy and Parental Leave

Pregnancy and parental leave are among the most common leave types employers must manage. This article describes an employer’s obligations with respect to pregnancy and parental leave and provides answers to common questions about managing this leave and avoiding associated liability. Specifically, this article addresses:

• The federal statutes governing pregnancy and parental leave.
• Employer obligations and employee rights under relevant federal statutes.
• Discrimination risks associated with mismanagement of pregnancy and parental leave.
• The most commonly asked employer questions about pregnancy and parental leave.

Applicable Laws

Under federal law, pregnancy and parental leave is governed primarily by three statutes:

• The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601 to 2654.
• Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e.
• The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 to 12117.

The EEOC has published Enforcement Guidance: Pregnancy Discrimination and Related Issues, Q&A Guidance, and a Fact Sheet for Small Businesses: Pregnancy Discrimination. Although not binding precedent, this guidance summarizes key provisions of federal law protecting against pregnancy discrimination, reviews significant cases, and provides illustrative examples of what the EEOC has determined to be prohibited and acceptable practices. The EEOC’s prior July 2014 guidance was significantly called into question by the US Supreme Court in Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1351-52 (2015). Following Young, the EEOC issued updated guidance dated June 25, 2015, although most of the information remained unchanged.

Many states administer their own laws affecting pregnancy and parental leave, with some offering more employee rights than federal law. A few states (for example, California and New York) even require short-term disability insurance protection for pregnant employees. However, the federal statutes act as a minimum all employers must adhere to.

The Family and Medical Leave Act

The FMLA is the primary statute conferring pregnant employees and parents the right to leave. The FMLA provides either 12 workweeks of unpaid job-protected leave to employees for certain qualifying reasons or 26 workweeks of unpaid job-protected leave for military caregiver leave. The FMLA authorizes up to 12 workweeks of unpaid leave for each 12-month period for:

• The birth and care of an employee’s newborn child.
• The placement of an employee’s adopted or foster child with the employee.

(29 U.S.C. § 2612(a).)

Covered Employers and Employees

A private employer is covered under the FMLA if it has 50 or more employees on its payroll for 20 or more calendar workweeks, which need not be consecutive, in either the current or preceding calendar year (29 U.S.C. § 2611(4)(A)(i); 29 C.F.R. § 825.104).

Employees are eligible for leave under the FMLA if the following three conditions are met:

• They have worked for the employer for at least 12 months (the 12 months need not be consecutive).
• They have worked 1,250 hours during the 12 months preceding leave.
• At least 50 employees work for the employer within 75 miles.

(29 U.S.C. § 2611(4)(A)(i); 29 C.F.R. § 825.104.)

However, special rules apply to airline flight crew employees.

In addition to pregnant employees, only certain additional family members are eligible for pregnancy or parental leave under the FMLA. The FMLA defines the following family relationships:

• Spouse. Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the marriage was entered into, including “common law” marriage and same-sex marriage. In Obergefell v. Hodges, the Supreme Court held that same-sex couples have the right to marry in all states, and a state may not refuse to recognize a lawful same-sex marriage performed in another state based on its same-sex character (135 S. Ct. 2584 (2015)). FMLA regulations define spouse as a husband or wife in an opposite sex, same-sex, or common law marriage that either:
  • was entered into in a state that recognizes such marriages; or
  • if entered into outside the US, is valid in the place where entered into and could have been entered into in at least one US state.
• (29 C.F.R. §§ 825.102 and 825.122(b).)
• Child, son, or daughter. The biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence (29 C.F.R. §§ 825.102 and 825.122(d); 29 U.S.C. § 2611(12)). The Department of Labor (DOL) recognizes that same sex partners with no legal relationship to a partner’s adopted child may be eligible for FMLA coverage (see DOL Wage and Hour Division Administrator’s Interpretation No. 2010-3 (June 22, 2010)).
• Parent. A biological, adoptive, foster, stepfather or stepmother, or any individual who stands in loco parentis (29 C.F.R. §§ 825.102 and 825.122(c); 29 U.S.C. § 2611(12)). According to a DOL opinion letter, an employee is not limited to having two parents.

Pregnancy Leave Rights Under the FMLA

Covered employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

• Both parents are entitled to take FMLA leave for the birth of their child (29 C.F.R. § 825.120(a)(1)).
• Both parents are entitled to FMLA leave to bond with a healthy newborn child. With respect to this entitlement:
  • both parents are entitled to this leave regardless of whether the newborn has a serious health condition;
  • this entitlement expires at the end of the 12-month period, beginning on the date of the birth; and
  • if additional leave is taken, either under state law or by permission of the employer, it will not qualify as FMLA leave.
• (29 C.F.R. § 825.120(a)(2).)
• The mother is also entitled to FMLA leave for:
  • incapacity due to pregnancy, including pregnancy complications and morning sickness (regardless of whether she visits a health care provider); however, an employer does have the right to request medical certification before granting or denying the leave (29 U.S.C. § 2613);
  • prenatal care; or
  • her own serious health condition following the birth of the child.
• (29 C.F.R. §§ 825.115(b), (f) and 825.120(a)(4).)
• The other parent is entitled to FMLA leave if needed to care for a spouse when she:
  • is pregnant and incapacitated;
  • is receiving prenatal care; or
  • has a serious health condition following the birth of the child.
• (29 C.F.R. § 825.120(a)(5)).
• Intermittent or reduced schedule leave to be with a healthy newborn child (one who is not suffering from a serious health condition) is only permitted if the employer agrees. Where an employer agrees, it may require the employee to transfer temporarily to an alternate position with equivalent pay and benefits for which the employee is qualified and which better accommodates intermittent leave. (29 C.F.R. § 825.120(b).)
• Employer consent is not required for intermittent leave necessitated by the serious health condition of the mother or newborn child (29 C.F.R. § 825.120(b)).
• When the employee’s need for intermittent or reduced schedule leave concludes, she must be returned to her previous position, or one with equivalent pay, benefits, and duties as the job she left when the leave commenced (29 C.F.R. § 825.204(e)). However, an exception exists for qualifying key employees.

Both Spouses Employed By the Same Employer

Where spouses who are eligible for FMLA leave are employed by the same covered employer, they may be limited to a combined total of 12 weeks of leave in any 12-month period. Where this is the case, the restriction applies regardless of how closely the two parents work as long as they both work for the same covered employer (for example, it applies even if they work at different worksites or in different divisions) (29 C.F.R. § 825.120(a)(3)). However, if the newborn has a serious health condition, spouses employed by the same employer may each take the full 12 weeks of leave to care for the child (29 C.F.R. § 825.120(a)(6)). If one spouse is ineligible for FMLA leave, however, the other spouse is eligible for their entire 12 weeks of leave.

Although FMLA leave is generally unpaid, an employer can require that any of the employee’s accrued paid vacation, personal, or sick leave run concurrently with FMLA leave. However, employers cannot delay the designation of FMLA-qualifying leave (for example, by allowing an employee to exhaust other available paid leave before designating leave as FMLA-qualifying). Similarly, the employee can request that accrued paid leave run concurrently with FMLA leave. However, paid leave must be provided according to the normal terms of the employer’s policy with respect to this leave. An employer is not required to provide paid leave under circumstances it normally would not. However, even if an employee is not eligible for paid leave, they are still entitled to FMLA leave. (29 C.F.R. § 825.207(a); see DOL Opinion Letter FMLA2019-1-A (Mar. 14, 2019).)

Employers may not designate as FMLA leave more than 12 weeks of paid leave or 26 weeks of military caregiver leave (DOL Opinion Letter FMLA2019-1-A).

On return from FMLA leave, an employee is entitled to be returned to her same job, or an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. This is true even if the employee was replaced during her absence, or if the job was restructured to accommodate the absence. (29 C.F.R. § 825.214.)

Adoption or Foster Care Leave Rights Under the FMLA

Covered parents are entitled to take up to 12 weeks of FMLA leave for adoption or foster care of a child if a son or daughter is placed with them for adoption or foster care, either before or after placement (29 C.F.R. § 825.121(a)). For the FMLA’s definition of son or daughter, see Covered Employers and Employees.

Covered parents are entitled to this leave when an absence from work is required for the adoption or foster care placement to proceed. For example, the employee may be required to:

• Attend counseling sessions.
• Appear in court.
• Consult with their attorney or the doctor or doctors representing the birth parent.
• Submit to a physical examination.
• Travel to another country to complete an adoption.

(29 C.F.R. § 825.121(a)(1).)

The child does not have to have a serious health condition for the covered parent to qualify for adoption or foster care leave.

The employee’s FMLA entitlement for this purpose expires at the end of the 12-month period beginning on the date of placement. If the employer or state law allows for leave beyond this period, it does not qualify as FMLA leave. (29 C.F.R. § 825.121(a)(2).)

As with leave for the birth of a newborn child, where spouses who are eligible for FMLA leave are employed by the same covered employer, they are limited under the FMLA to a combined total of 12 weeks leave in any 12-month period for adoption or foster care placement. If one spouse is ineligible for FMLA leave, however, the other spouse is eligible for their entire 12 weeks of leave (29 C.F.R. § 825.121(a)(3)). However, both spouses may take 12 weeks of FMLA leave to care for an adopted or foster child with a serious health condition (29 C.F.R. § 825.121(a)(4)).

Intermittent leave is available for the care of an adopted or foster child as follows:

• Intermittent or reduced schedule leave to be with a healthy adopted or foster child is only permitted if the employer agrees. Where an employer agrees, it may require the employee to transfer temporarily to an alternate position with equivalent pay and benefits for which the employee is qualified and which better accommodates intermittent leave (29 C.F.R. § 825.121(b)).
• Employer agreement is not required for intermittent leave necessitated by the serious health condition of the adopted or foster child (29 C.F.R. § 825.121(b)).
• When the employee’s need for intermittent leave concludes, they must be returned to their previous position, or one with equivalent pay, benefits, and duties as the job they left when the leave commenced. The only exception to this rule is where the employee is a key employee under the FMLA (29 C.F.R. § 825.204(e)).

Title VII of the Civil Rights Act of 1964

Title VII protects employees who are disabled due to pregnancy just as it protects employees disabled for other reasons (42 U.S.C. § 2000e; 29 C.F.R. § 1604.10). The Pregnancy Discrimination Act of 1978 (PDA) amended Title VII by expanding the prohibition of discrimination “on the basis of sex” to include:

• Pregnancy.
• Childbirth.
• Related medical conditions.

(42 U.S.C. § 2000e(k); 29 C.F.R. § 1604.10.)

The PDA does not mandate pregnancy leave; that mandate is left to the FMLA. However, the PDA requires that pregnant employees be treated the same as non-pregnant employees (42 U.S.C. § 2000e(k)).

Covered Employers and Employees

Title VII, including the PDA, applies to private, state government, and local government employers with 15 or more employees, as well as labor organizations, joint labor-management committees on training or apprenticeship, employment agencies, and the federal government.

Title VII protects employees (including former employees) and applicants for employment. It does not protect independent contractors.

Title VII covers US citizens working abroad for US-controlled companies, but does not cover aliens working abroad for US-controlled companies or US citizens working for non-US-controlled companies (42 U.S.C. § 2000e-1(a)).

Pregnancy Protections Under the PDA

The PDA prohibits discrimination based on pregnancy and medical conditions related to pregnancy or childbirth. The PDA protects a woman from being terminated, refused a job, or denied a promotion because she is pregnant. It also:

• Prohibits an employer from forcing a woman to go on leave while she is able to work.
• Requires that pregnant women be treated the same as other employees for purposes of leave, accommodations, and participation in benefit plans and health and disability insurance.
  • In the US Supreme Court’s decision in Young, 135 S. Ct. 1338, the Court created a new “significant burden” standard for cases where a pregnant employee requires an accommodation that is provided to employees that are neither pregnant or disabled. Although the Young decision was a light-duty accommodation case, it is possible that courts will apply the new standard to a broader category of pregnancy discrimination cases.
• Prohibits employers from requiring special procedures for employees with pregnancy-related conditions to determine their eligibility to work (however, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit the same statements).
• Requires reinstatement following the pregnancy-related disability leave where other disabled employees are entitled to reinstatement. With respect to this, an employer may not prohibit:
  • a pregnant employee who has recovered from a disabling condition from returning to work; or
  • an employee from returning to work for a predetermined length of time after childbirth.

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, including lactation, an employer must treat her the same as other temporarily disabled employees. For example, the employer may have to provide:

• Modified tasks.
• Alternative assignments.
• Disability leave.
• Unpaid leave.

Regarding participation in health and other benefit plans:

• Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as for other medical conditions.
• An employer is not required to provide health insurance for abortion-related expenses, except where the mother’s life is endangered.
• Pregnancy-related expenses must be reimbursed in the same way as expenses incurred for other medical conditions, regardless of whether payment is on a fixed basis or percentage basis.
• Amounts payable by the insurance provider can be limited only to the same extent as amounts for other conditions. No additional, increased, or larger deductible can be imposed.
• Spouses of male employees must receive the same level of health benefits as spouses of female employees.
• Pregnancy-related benefits cannot be limited to married employees.
• Benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.
• Where an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave because of pregnancy-related conditions.
• Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of:
  • seniority;
  • vacation calculation;
  • pay increases; and
  • temporary disability benefits.

The PDA also prohibits retaliation against individuals who:

• Oppose employment practices that discriminate based on pregnancy.
• File a discrimination charge, testify, or participate in any way in an investigation, proceeding, or litigation under Title VII.

The Americans with Disabilities Act

The ADA provides for pregnancy-related leave in limited circumstances. Specifically, an employee experiencing pregnancy or childbirth-related complications that limit a major life activity may be considered disabled under the ADA and entitled to its protections, including reasonable accommodation.

Covered Employers and Employees

The ADA generally covers private employers with 15 or more employees. Those 15 employees are counted toward the threshold if they have worked each workday for at least 20 weeks during the current or previous calendar year. Public employers are covered under the ADA regardless of how many employees they employ, but certain exceptions apply.

ADA Protections

While the ADA does not automatically provide for pregnancy leave, employers should be aware of the ADA’s protections and their obligations when applicable. The ADA prohibits employers from discriminating in all aspects of employment against qualified individuals because of disability and requires employers to reasonably accommodate disabilities if they can do so without suffering undue hardship.

To determine whether a pregnant employee is entitled to ADA protection, an employer must determine both whether the individual:

• Is qualified.
• Has a covered disability.

Covered employers must respond once they become aware of a need for accommodation for a pregnancy-related disability. Examples of accommodation include:

• Providing leave.
• Making facilities more accessible.
• Restructuring the applicable job.
• Allowing a change in a work schedule.

Employers should familiarize themselves with the kinds of accommodation questions that arise regularly and the circumstances under which they are not required to provide accommodation.

Employers are prohibited from retaliating against an individual for requesting accommodation and should also understand the potential for legal exposure for mismanaging accommodation requests.

Common Employer Questions About Pregnancy and Parental Leave

The following are commonly asked questions about pregnancy and parental leave, along with answers based on federal law. Recall that each state may provide additional employee protections, so it is critical to check relevant state law as well.

• How many weeks of pregnancy leave do I have to provide a pregnant employee? The FMLA requires that a covered employer provide an eligible mother or father with 12 weeks of leave (including intermittent leave) for the birth and care of a newborn child or placement of a foster or adopted child. State law may require more leave. If a pregnant mother experiences a disability under the ADA, she may need to be reasonably accommodated with further leave as necessary, whether before or after the birth of the child.
• Is pregnancy leave paid or unpaid? The FMLA only requires unpaid leave. However, certain states, such as California, may require paid family leave. The PDA and ADA require that leave be administered in accordance with other types of disability leave; if other types of leave would be paid, disability leave due to a pregnancy-related condition must also be paid.
• Can the employer require the employee to use any accrued and unused vacation, paid time off (PTO), or sick time? Yes, the employer may require the employee to use any accrued and unused vacation, PTO, or sick time during the FMLA leave. An employee can also elect to use any accrued and unused vacation, PTO, or sick time during the FMLA leave. However, if the employee runs out of this paid time, the employee is still entitled to the remainder of the FMLA leave available.
• Does non-FMLA pregnancy leave run concurrently or consecutively with the FMLA or comparable state laws? PDA and ADA leave runs concurrently with FMLA leave. However, some state family medical or pregnancy leave must run consecutively with FMLA leave (for example, California has this requirement).
• Must leave be given before birth if requested? An employee may be provided pregnancy-related leave before birth if she is experiencing a pregnancy-related disability under the PDA, ADA, or state law. The FMLA also authorizes leave before childbirth for a pregnant woman has a serious health condition. A father may also request pre-birth leave if necessary to take care of the mother.
• What are employer leave obligations once FMLA leave has run out? Under federal law, employer leave obligations after all FMLA leave has been used are determined by whether the employee is disabled under the ADA. However, state law may require further leave, either under its own FMLA leave counterpart or under state disability laws.
• Are fathers entitled to leave for childbirth? Yes, under the FMLA, fathers are entitled to 12 weeks of unpaid leave for childbirth and intermittent leave as necessary, just as mothers are. Fathers are also entitled to FMLA leave to care for an expectant mother.
• If fathers are given leave, how much leave is required, and must it be the same as mothers are given? Under the FMLA, fathers are entitled to 12 weeks of unpaid leave, just as mothers. Fathers are also entitled to intermittent leave. With respect to equality of leave, the EEOC takes the position that parents are entitled to equal leave to care for or bond with a child under Title VII (see Enforcement Guidance: Pregnancy Discrimination and Related Issues). The EEOC distinguished between caring/bonding leave and disability leave, however, noting that disability leave could be reserved exclusively for a pregnant person without running afoul of Title VII. In support of its position, the EEOC cited Johnson v. Univ. of Iowa, in which the court notes, “[i]f the leave given to biological mothers is granted due to the physical trauma they sustain giving birth, then it is conferred for a valid reason wholly separate from gender. If the leave is instead designed to provide time to care for, and bond with, a newborn, then there is no legitimate reason for biological fathers to be denied the same benefit” (431 F.3d 325, 328 (8th Cir. 2005).) At least one additional case is supportive of the EEOC’s position: Schafer v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, Pa., 903 F.2d 243 (3d Cir. 1990) (holding a section of a collective bargaining agreement that authorized one year of leave to care for a child for women but not for men to be unlawful under Title VII).
• If an employer is concerned that a work environment is harmful to an unborn child, can you transfer the employee, change their duties, or require them to take leave? An employer cannot force an employee to transfer, reduce duties, or take leave if the employee does not request it.
• Can the employer hire a replacement while the employee is on leave? Yes, an employer can hire a replacement while the affected employee is on leave. However, the employee is entitled to be reinstated to the same position they left when they went on leave, or to an equivalent position with equivalent duties, pay, and benefits. The only exception to this rule, generally, is if the employee’s leave is so long (usually over a year, although this varies by jurisdiction), that it places an unreasonable burden on the employer or if the employee is a key employee.
• What should an employer do if it has heard rumors that the employee does not plan to return to work following parental leave, but the employee has not disclosed these plans? The employer should never act on rumors. The employee is entitled to the full scope of their eligible leave unless they notify the employer that they are terminating employment. Termination of an employee on leave who has not resigned exposes the employer to wrongful termination claims, including retaliation claims.
• Can employers pay some employees parental leave and not others? An employer that selectively enforces its policies (for example, paying some employees maternity leave but not others) exposes itself to discrimination claims (for example, because of race, age, national origin, or other protected classes).