The Pregnancy Discrimination Act (PDA) prohibits discrimination against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” Any employer that’s subject to Title VII of the Civil Rights Act of 1964 (i.e., has 15 or more employees) must comply with the PDA.

Under the law, you can’t deny a woman a job or a promotion merely because she’s pregnant or has had an abortion. Nor can you fire her because of her condition or force her to go on leave as long as she’s physically capable of performing her job.

In short, the law requires you to treat pregnant employees the same as other employees on the basis of their ability or inability to work. That means you must provide the same accommodations for an expectant worker that you do for any employees unable to perform their regular duties. For example, if you provide other work for an employee who can’t lift heavy boxes because of a bad back, you must make similar arrangements for a pregnant employee.

Caution: Employers that use light-duty programs to cut workers’ compensation costs often make one big legal mistake: They haphazardly apply their policies, allowing some employees to take light-duty jobs, but not others. That inconsistency is the fastest way to trigger discrimination lawsuits from employees who may need light-duty positions temporarily for other reasons, such as pregnancy.

EEOC guidance explains that light-duty assignments, which are sometimes reserved for on-the-job injuries, must be provided to pregnant workers if light duty is provided to other workers “similar in their ability or inability to work.”

In addition, the PDA requires you to provide sick leave and disability benefits on the same basis or conditions that apply to other employees who are granted leave for a temporary disability. Women who take maternity leave must be reinstated under the same conditions as employees returning from disability leave.

At the same time, you’re allowed to apply the same requirements that you impose on other employees. So, if you usually require employees to obtain a doctor’s note before allowing them to take sick leave and collect benefits, you can impose the same rule on pregnant employees.

Other key PDA provisions:

• You can’t exclude single women from maternity benefits.
• You can’t compel pregnant workers to take leave.
• You must provide the same coverage for pregnancy-related conditions as you do for illnesses and disabilities.
• You can require a pregnant employee to use her vacation benefits before she can collect sick leave or disability pay, as long as you have the same requirement for employees absent for other types of disabilities or illnesses.
• You can’t force an employee with a single-coverage policy to purchase a family policy so as to be covered when she becomes pregnant. However, she should be allowed to switch to the family plan after the birth so that her child will be covered.
• You can’t prohibit women from assignments due to concerns that the work environment may be harmful to the health of the woman or her baby. Likewise, no matter how well-meaning, employers cannot make employment decisions based on assumptions about how pregnancy or parenthood will affect job performance, attendance or commitment to the job.

Note: The Affordable Care Act—the health care reform law that was enacted in 2010—prohibits health insurance companies from denying insurance based on pregnancy as a “pre-existing condition” (i.e., a condition that existed when the insured worker’s coverage took effect). This is the case even if the woman had no prior coverage before enrolling in her employer’s plan.

Charges of discrimination on the basis of pregnancy or related conditions are difficult to fight in court. You will lose unless you can clearly prove that the reasons for not hiring or for discharging the plaintiff were unrelated to her pregnancy.

Four cases in point:

1. Peggy Young worked part-time as a UPS driver. While drivers are generally required to be able to lift up to 70 pounds, the plaintiff’s duties typically included carrying only letters and lighter packages. After becoming pregnant, Young requested a leave of absence. Soon thereafter, she submitted a doctor’s note restricting her from lifting more than 20 pounds, and requested light duty. UPS rejected the request, even though it regularly provided light duty or other accommodations to employees injured on-the-job and certain other categories of employees (both male and female), taking the position that its policy was facially neutral. Young argued that the PDA requires employers to provide pregnant employees light-duty work if it provides similar work to other temporarily disabled employees. The Supreme Court did not find that employers are automatically required to accommodate all pregnant workers just because they accommodate another nonpregnant employees. Nevertheless, it noted that employers should be prepared to justify any differences in their accommodation decisions based on legitimate business reasons beyond cost and convenience, particularly when the employer accommodates a substantial number of nonpregnant employees. (Young v. UPS)

2. A sales manager for a telecommunications company secured a lucrative contract in Eastern Europe under which she would be paid a percentage of all sales. But before the products were shipped, she announced she was pregnant. She was terminated almost immediately with no reason given. She sued under the PDA, Title VII and several state laws. A jury awarded her $98,364. The employer lost the appeal. (Houben v. Telular Corp., 7th Cir.)

3. A secretary at a real estate company was terminated while on maternity leave. During that time, her employer was experiencing financial problems, made several staff cutbacks and later filed for bankruptcy. The plaintiff sued under Title VII and New Jersey’s anti-discrimination statute. Both the Bankruptcy Court and the District Court found in favor of the employer and held that she was terminated for legitimate, nondiscriminatory reasons. The 3rd Circuit affirmed the decision, saying the reason for her firing was the plaintiff’s work record prior to taking maternity leave, not the pregnancy. (Rhett v. Carnegie Ctr. Assoc., 3rd Cir.)

4. The clothing chain Motherhood Maternity provided an ironic example of pregnancy discrimination. In 2007, the firm paid $375,000 to settle a pregnancy discrimination and retaliation lawsuit. The EEOC suit alleged that when a former assistant manager complained about discrimination against pregnant applicants, the company retaliated and ultimately fired her. The settlement required the parent company to pay the fired assistant manager $135,000 in compensatory and punitive damages and $50,000 in back pay, plus another $20,000 to each of three pregnant applicants. (EEOC v. Mothers Work Inc., dba Motherhood Maternity.)

Singling out pregnant employees for any reason can lead to a lawsuit. If supervisors make little jokes about pregnancy and childbirth, rein them in.

In one case, when a top performer received an award at a luncheon, she was taken aback when her boss casually said, “You’re not gonna get pregnant now, are you?” In fact, she did become pregnant the following month. Then her boss began calling her “Prego” and soon was criticizing her work. She complained to HR, but the company didn’t investigate.

She sued, and the court concluded calling her “Prego” and making comments about pregnancy amounted to a hostile environment. (Zisumbo v. McLeodUSA Telecom, 10th Cir.)

For the EEOC’s Fact Sheet on Pregnancy Discrimination, see http://www.eeoc.gov/eeoc/publications/fs-preg.cfm.

When an employee becomes pregnant, her employer must also consider her right to take leave under the federal FMLA. Eligible employees can take up to 12 weeks of unpaid, job-protected FMLA leave for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition.

To qualify for FMLA leave, an employee must have worked for the same employer for at least 12 months (not necessarily continuously) and clocked at least 1,250 hours of service (slightly more than 24 hours per week) during the 12 months leading up to FMLA leave. Any organization with 50 or more employees working within a 75-mile radius of the work site must comply with the FMLA.

New parents—both mothers and fathers—can take FMLA leave any time in the first 12 months after a child’s arrival. But employees must conclude their leave before the 12-month period ends. Presumably, the idea is that if a working mother takes her 12 weeks and then returns to work, the father can care for the child for the next 12 weeks.

What if both parents work for the same company? They’re entitled to a combined total of 12 weeks’ leave after the birth or adoption. In this case, each parent would have the difference between 12 weeks and the amount of leave they took for the child to use for any other legitimate FMLA reason in that year.

Example: Bob and Linda Jones have a child and work for the same employer. Bob takes four weeks’ leave, and Linda takes eight weeks’ leave for their child’s arrival. Bob still has eight weeks of leave to use in that year for any other FMLA purpose; Linda has four remaining weeks.

‘Serious health condition’

Employees can also use their allowable FMLA leave if they suffer complications during pregnancy or prenatal care that constitute a “serious health condition.” (The FMLA defines a “serious health condition” as “an illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”)

Case in point: Cindy Hiemer said her chronic lung problem was exacerbated by her pregnancy. She asked her employer, Anthem Insurance, for FMLA leave. After she was fired for failing to call in sick, she sued the company, alleging interference with her right to FMLA leave. But Anthem Insurance said her absence wasn’t a serious health condition—Hiemer had testified she couldn’t come to work because she felt nauseous and lightheaded. The company said FMLA didn’t cover that sort of problem. The court disagreed, concluding that— since FMLA regulations say anything related to pregnancy automatically qualifies as a serious health condition—nausea and lightheadedness might be enough. The case could proceed to trial, giving Hiemer the opportunity to convince a jury that her absence was indeed pregnancy-related. (Hiemer v. Anthem Insurance, SD OH)

Advice: When it comes to a pregnancy, follow the safest path: Approve any absences that are even remotely related to the pregnancy as FMLA-covered leave.

FMLA rights extend to all spouses

The U.S. Supreme Court’s 2013 ruling in United States v. Windsor struck down a provision in the federal Defense of Marriage Act that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law.

The rule change granted FMLA leave rights to same-sex spouses even in states that do not sanction or recognize gay marriage. It updates the FMLA’s definition of “spouse,” which previously did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. The rule made official changes that were first proposed in July 2014.

Now, eligibility for FMLA protections is based on the law of the place where the marriage was entered into. This “place of celebration” provision allows all legally married couples, to have consistent family leave rights.

A normal pregnancy is not considered a disability under the ADA. The law defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” But if a woman experiences pregnancy complications that substantially limit a major life activity, she may be considered disabled under the ADA and, therefore, entitled to reasonable accommodation to perform her job.

Example: If a new mother is still unable to return to work after exhausting her 12 weeks of FMLA leave, you should evaluate her condition under the ADA to determine whether additional time off is a reasonable accommodation for her. (Also, be sure to check your state law because some states provide more than 12 weeks of parental leave.)

The EEOC considers lactation a pregnancy- and gender-related condition, and employer’s policies and practices cannot single out lactating women. The Affordable Care Act requires employers to provide break time for breastfeeding and expressing milk.

All employers that have 15 or more employees must comply with the ADA.

Several states mandate more generous maternity and family leave than the FMLA (and some state laws apply to smaller employers). Here are a couple examples:

• Tennessee: Public and private employers that have eight or more workers must maintain a maternity leave policy that allows female employees 16 weeks’ leave for childbirth.
• Rhode Island: Public employers of 30 or more employees and private employers with 50 or more employees are required to offer 13 weeks of state maternity leave in any two calendar years for the birth or adoption of a child or the serious illness of a child, spouse or parent
• California, Hawaii and New Jersey: Employees temporarily disabled for medical reasons, including pregnancy and childbirth, receive partial wage replacement in the form of temporary disability insurance benefits.

California’s provisions on pregnancy disability leave cover employers with as few as five employees. The leave is capped at four months. But it’s important to note that pregnancy disability leave comes in addition to leave taken under the California Family Rights Act (covering employers with 50 or more employees). So an employee covered by both laws could take four months of pregnancy disability leave and then 12 weeks of family leave to care for a new child.

Tip: You can find more information on state maternity leave laws, at the National Conference on State Legislatures’ website: http://www.ncsl.org.

According to the Society for Human Resource Management, 21% of employers offered some type of paid maternity leave in 2015, while 17% offered paid paternity and/or adoption leave. This is a drastic rise from 2014, when just 12% of employers offered such paid leave.

It’s up to each employer to decide how many weeks of paid leave to offer for maternity and paternity leave. For example, one accounting firm with an 80- person staff provides new moms and dads who are full-time employees 30 days’ paid leave and an additional 60 days’ unpaid leave upon the birth or adoption of a child. By contrast, a large broadcasting corporation gives moms with one year of service eight weeks of paid maternity leave on top of two weeks of paid prematernity leave, while new dads get two weeks’ fully paid leave. Some progressive companies, recognizing the cost of employee turnover and the attractiveness of parental leave, have begun to offer greatly extended leave.

If you decide to adopt a formal maternity/paternity leave policy, make sure it complies with both federal and state regulations. Since some state laws grant employees more generous leave—and apply to employers with fewer employees than the FMLA requires—have your attorney review your policy (and/or any updates) before you disseminate it to employees.

The EEOC has developed a series of questions and answers that clear up most of the ambiguities in the Pregnancy Discrimination Act of 1978. The law requires that companies (with 15 or more workers) cover maternity benefits if they cover other health benefits.

Hiring and on-the-job rules

Q. Are you obligated to accommodate an employee who can’t, because of her pregnancy, perform her usual assignments?

A. That depends on the type of accommodation you usually make for other employees who are unable to perform their usual jobs. For example, if you provide other work for an employee who cannot do any lifting because of a bad back, you must make similar arrangements for a pregnant employee.

Q. What procedures can you use to force a pregnant employee to take a leave of absence or to stay on the job if she wants to leave?

A. The EEOC says emphatically that you cannot single out pregnant employees for special procedures to determine their ability to continue work. However, you can apply the same requirements that you impose on other employees. Thus, if you usually require employees to obtain a doctor’s note before allowing them to take sick leave and collect benefits, you can impose the same rule on pregnant employees.

Q. Can you bar a woman from returning to work for a predetermined period after she gives birth?

A. No. You cannot have a rule, for instance, that a woman must wait a month following childbirth before returning to work.

Q. If a pregnant employee goes on maternity leave because she’s ill and then feels better and wants to return to work, can you require her to stay on leave until she gives birth?

A. No. An employee can return to work anytime during her pregnancy as long as she can perform her job.

Q. Must you keep the job of a pregnant employee open until she’s ready to return to work following the birth of her child?

A. Generally, yes. Unless you are informed that she will not return to work, you must keep the job open on the same basis as positions that are held open for employees on sick leave or disability leave for other reasons.

Q. Are you required to hire a woman who, because of her pregnancy, can’t perform only one of a job’s necessary functions?

A. You can’t refuse to hire a pregnant woman who is capable of performing most major job functions. Furthermore, you can’t refuse to hire her just because coworkers, clients or customers prefer that the job not be filled by a pregnant worker.

Q. Can an organization transfer a pregnant employee to a position of less earning power?

A. No, according to a decision by a U.S. Appeals Court. The decision singles out two pitfalls for companies in regard to pregnant employees:

• A supervisor’s question to an employee about her family and childbearing plans has no place in hiring, promotion or other employment decisions.
• An employer may not usually ask a pregnant employee to choose between a lower-level job and resignation.

Health and disability insurance

Q. Must you provide benefits for pregnancy-related conditions even if you have a predominantly female work force or if you employ all women for a specific job classification?

A. Yes. You must provide benefits for pregnancy if you offer benefits for other medical conditions.

Q. Can your company limit pregnancy disability insurance benefits to only married employees?

A. No. Single women who become pregnant also must be covered under your disability plan.

Q. How long are you required to pay disability benefits for pregnancy if you provide income maintenance benefits for other temporary disabilities?

A. Generally, you must provide benefits for as long as a pregnant woman is unable to work for medical reasons; however, you may set certain time limits if you impose them on other temporary disabilities.

Q. If you comply with a state law that requires disability insurance for a specific period before and after childbirth, are you automatically in compliance with the federal pregnancy law?

A. Not necessarily. Under federal law, you must treat employees who are temporarily disabled due to pregnancy in the same manner as you would employees temporarily disabled by other conditions.

Q. Can you require a pregnant employee to use up her vacation benefits before she can collect sick leave or disability pay?

A. Yes, but only if you have the same requirements for employees absent for other types of disabilities or illnesses. You should state this in your FMLA policy.

Q. Must your health insurance plan cover the pregnancy-related expenses of spouses of your male employees? Of other dependents?

A. If an employer’s plan covers medical expenses of spouses of female employees, it must cover the expenses of spouses of male employees, including pregnancy. Insurance coverage for pregnancy need not be extended to include other dependents as long as it excludes pregnancy benefits for dependents of both male and female employees.

Q. Can an employer limit payment of costs resulting from pregnancy-related conditions to a specific dollar amount stipulated in an insurance policy, collective bargaining pact or other statement of employee benefits?

A. Yes. Maximum recoverable dollar amounts can be set for pregnancy-related conditions, provided the amounts are specified for other conditions and the specified amounts in all instances cover the same proportion of actual costs. Note that an employer must pay additional costs for pregnancy-related procedures if additional payments are made for other procedures.

Q. Can you establish a different deductible for pregnancy-related conditions than you do for the costs of other medical conditions?

A. No. You may not tack on an additional deductible or increase the usual deductible for coverage of pregnancy, either as a condition for inclusion of pregnancy costs or for the payment of costs when incurred.

Q. If a health plan specifically excludes conditions existing at the time when the insured’s coverage takes effect (pre-existing condition clauses), can the same rule apply to pregnancy existing at the time insurance coverage takes effect?

A. No. Pre-existing conditions cannot be applied to pregnancy, according to the Health Insurance Portability and Accountability Act of 1996. This is the case even if the woman had no prior coverage before enrolling in her employer's plan.

Q. If you offer employees a choice between enrolling in one of two health insurance plans, must both cover pregnancy-related conditions?

A. Yes. An employee with a single-coverage policy can’t be forced to purchase a family policy in order to be covered when she becomes pregnant.

Q. How must an employee be reimbursed for medical expenses incurred because of pregnancy-related conditions?

A. Again, the rule is that expenses arising from pregnancy must be reimbursed on the same basis as expenses for other medical conditions.

Abortion policies

Q. Can you refuse to hire, discharge or in any other way discriminate against a woman for the sole reason that she’s had an abortion?

A. No. A woman who has had an abortion must be treated the same as other employees.

Q. If an abortion leads to complications, such as excessive hemorrhaging, must your health insurance plan cover the additional costs attributable to these complications?

A. Your plan must pay costs arising from complications resulting from an abortion—but not necessarily for the abortion itself.

Q. Can you decide to have your insurance program cover abortion, even if it’s not required?

A. The Pregnancy Discrimination Act specifically says that employers can provide insurance for abortion, either directly or through a collective bargaining agreement. However, employers are warned that if they do include abortion in their health insurance plan, they must do so in the same manner as they cover other medical conditions.

However, the debate surrounding the Affordable Care Act of 2010 revived the debate over abortion coverage, which has led to many states passing new laws limiting abortion coverage. You should check the law of your particular state for limits on abortion coverage. Since the enactment of the Affordable Care Act in March 2010, some 25 states have enacted legislation to restrict coverage for abortion in their insurance exchanges.

You can find more information at the National Conference on State Legislatures’ website. Visit http://www.ncsl.org and search for “abortion insurance.”

Final tip: Keep in mind that a pregnancy discrimination claim can’t succeed if there’s no evidence that the employer had knowledge of the pregnancy. (PrebilichHolland v. Gaylord, 6th Cir.)