Oh Baby! A Primer on Maternity Law for Employers

By William N. Helou

More than 4 million babies are born in the United States each year. Recent U.S. Census Bureau reports indicate that 67 percent of first-time mothers worked during their pregnancy, 80 percent of those women worked during the month before they gave birth, and 55 percent were working by the sixth month after they gave birth. Joyous as the anticipation and arrival of a new baby is, the news of expectancy often produces questions and concerns for employers regarding their obligations to the expectant and new mothers they employ. This article outlines some of the basic employer responsibilities as set forth in federal and Tennessee maternity law.

I. Prohibition on Discrimination

The Pregnancy Discrimination Act of 1978¹ is the federal law that protects women who are pregnant or affected by pregnancy-related conditions from being treated differently from other applicants or employees with similar abilities or limitations. Employers should be aware of the following protections afforded by the Pregnancy Discrimination Act:

Hiring: An employer may not refuse to hire a pregnant woman because she is pregnant or has a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.

Pregnancy and Maternity Leave: An employer may not require pregnant employees to submit to special procedures in order to determine their ability to work. If an employer has a policy that is applicable to all employees, however, it need not exclude pregnant women from the required procedure. For instance, if an employer requires its employees to submit a doctor's statement concerning their inability to work prior to granting leave, it may also require pregnant employees to submit such statements. Likewise, an employer must treat pregnant employees who cannot perform their job due to a pregnancy-related condition the same way it treats temporarily disabled employees.

Pregnant employees must be permitted to work as long as they are able to perform their jobs. In addition, an employer may not prohibit a woman from returning to work after giving birth.

Employers must hold open a job for a pregnancy-related absence for the same length of time positions are held open for employees on sick or disability leave.

Health Insurance: Any employer-provided health insurance plan must treat pregnancy-related conditions the same as other medical conditions. Further, pregnant employees cannot be required to pay a larger health insurance deductible than other employees pay.

Other Benefits: If an employer provides any benefits to employees on leave, the employer must offer the same benefits for those on leave for pregnancy-related conditions, including vacation, pay increases, temporary disability benefits, and calculation of seniority.

As evidenced by the specific requirements listed above, the Pregnancy Discrimination Act requires that employers not treat pregnancy more or less favorably than temporarily disabled individuals. Employers should review their policies to ensure that pregnant applicants and employees and those with similar abilities or limitations are treated consistently.

II. Maternity Leave

In Tennessee, maternity leave is protected under both the Tennessee Maternity Leave Act ("TMLA"), now included in the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-401 et seq., and the federal Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. The FMLA only applies to employers with 50 or more employees within a 75-mile radius of the workplace. The FMLA provides up to 12 weeks of unpaid, job-protected leave in any 12-month period for the birth or adoption of a child. Eligible employees must work at least 25 hours a week and have worked for the current employer for at least one year. New fathers who are eligible employees are also entitled to FMLA leave. If the same company employs both new parents, however, the spouses will only be entitled to a combined total of 12 weeks of leave.

Eligible employees are required to provide 30-days advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. If the need for leave arises suddenly, due to medical emergency for example, the employee must provide notice as soon as practicable. Subject to the employer's approval, an eligible employee may take FMLA leave intermittently - taking leave in separate blocks of time for a single qualifying reason - or on a reduced leave schedule - reducing the employee's usual weekly or daily work schedule. Under FMLA, covered employees are entitled to continued group health insurance coverage and restoration to the employee's original job and benefits, or an equivalent job and benefits.

The TMLA provides an additional month of job-protected leave beyond that afforded to eligible employees by the FMLA and is broader in application than the FMLA, in that it affects employers of only eight or more individuals. The TMLA allows employees four months of unpaid leave for pregnancy, childbirth, adoption and care of a newborn. In order to be eligible for TMLA leave, employees must have worked full-time for the current employer for at least one year. Since it was amended in 2005, the TMLA allows equal leave to both male and female employees. Barring medical emergency causing leave to begin earlier than expected or an adoption for which the employee receives notice more quickly than three months, the employee must provide the employer with at least three months advance notice of his/her departure date, length of leave, and intent to return to work at the conclusion of the leave period. For adoption, leave begins upon the employee receiving custody of the child.

As with the FMLA, employers retain the discretion to determine whether leave under the TMLA will be with or without pay. Additionally, under the TMLA, employers retain the right not to reinstate an employee if: (1) the employee's job is so unique that the employer cannot, after reasonable efforts, fill the position temporarily; (2) the employer discovers that the employee utilized the period of leave to actively pursue other employment opportunities; or (3) the employer discovers that the employee has worked for another employer during the period of leave. Employers can be assured of meeting the requirements of the TMLA by treating leave under the TMLA consistently with leave under the FMLA, except that employees are entitled to an additional month of leave.

III. Accommodating Mothers in the Workplace

Since 1999, Tennessee Code Annotated § 50-1-305 has required Tennessee employers to provide nursing-mother breaks unless "to do so would unduly disrupt the operations of the employer." Tennessee law also requires employers to "make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall," for breast milk expression. Now federal law also requires nursing-mother breaks and accommodations, and its requirements are a bit more stringent than Tennessee law.

Section 4207 of the Patient Protection and Affordable Care Act ("PPACA"), signed into law on March 23, 2010, amends Section 7 of the Fair Labor Standards Act to require employers to make accommodations for nursing mothers during the one year following a child's birth. Specifically, employers are required to provide nursing employees with: (1) reasonable break time to express breast milk each time such need arises; and (2) a space for pumping breast milk "other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public." The new provision does not quantify what is a reasonable length of time for a nursing-mother break, but employers are not required to compensate an employee for the break time. There is a small employer exception for employers of less than 50 individuals. Such employers are not subject to the requirements of Section 4207 if it would impose an undue hardship in relation to the size, financial resources, nature or structure of the employer's business.

Thus, under PPACA, unless they employ less than 50 individuals, Tennessee employers are no longer excused from providing nursing-mother breaks because of a disruption in operations. Additionally, the description of the physical space required for such breaks is more detailed in PPACA, so Tennessee employers will have to consider whether further adjustments need to be made to accommodate the nursing mothers it employs. For instance, if a Tennessee employer may have previously made accommodations within a bathroom, but outside of a toilet stall for breaks, it may need to revisit the location of its break space.

IV. Conclusion

Employers should take care to review their policies at regular intervals to ensure that they are affording their employees these statutory protections and that their compliant policies are reflected in the latest publication of the employee handbook and other printed materials. Employers should also conduct periodic training sessions for managers and supervisors to educate them about these policies.

¹ The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(k).  The application of Title VII is generally limited to employers, including state and local governments, with 15 or more employees (including part-time and temporary workers).