Employers have brand-new legal obligations to reasonably accommodate workers expanding their families. The EEOC just announced expansive new proposed regulations that may require leave for everything pregnancy-related. Think infertility, stillbirth, abortion, menstruation, and maybe menopause leave. Plus, there’s a requirement that your pregnant employees be provided with reasonable accommodations that allow them to continue working up to giving birth. These reasonable accommodations can be something as simple as allowing late arrival for scheduled shifts due to morning sickness or providing unpaid leave after giving birth even if no paid leave is available or the employee isn’t eligible for unpaid FMLA leave. If a reasonable accommodation is available, you can’t choose to send the employee home on unpaid leave instead if she wants to work.
In addition, you must reasonably accommodate postpartum conditions and complications until the new parent is ready to resume work. That’s true whether she’s out of FMLA leave or not entitled to it. For example, an employee who undergoes a cesarean section and has complications from that surgery may have to be allowed more time off than she has available as a reasonable accommodation. Think of it as a new form of maternity leave.
Then, when she does return, you’re also required to provide a facility where, for up to a year following birth, she can safely and privately express milk for the new infant and do so as often as she needs to. That means unlimited breaks during the workday are now a federal requirement — with some specific provisions for when that time must be paid. What’s more, you have only 10 days after a request for a milk expression break room to provide one. On day 11, the employee can file her federal lawsuit. The litigation has already started with a class action for allegedly forcing new mothers to express in the breakroom or the back of a truck.