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Knowing maternity rights helps pregnant employees be more aware of pregnancy discrimination in the workplace. Pregnant women have, at least once, been denied jobs or asked to reapply to the position only after giving birth.
Other pregnant women have gone through the extreme: they have been fired from their position, refused maternity leave, and/or treated unjustly in the workplace because of their condition.
Before going through this topic, it is vital to ask: what are maternity rights?
Maternity rights encompass different aspects of employment such as hiring, accommodation, insurance, and maternity leave. These rights accommodate the needs of pregnant women and outlaw forms of discrimination in the workplace.
In countries such as the United States, pregnancy discrimination is illegal. US laws dictate that pregnant women should be entitled to maternity leave and other benefits stipulated under pregnancy rights. Knowing the laws protecting pregnant women in the workplace is an essential tool in combatting this type of discrimination.
What are Maternity Rights?
In the USA, the Pregnancy Discrimination Act protects pregnant employees from discrimination and enforces their maternity rights in the workplace. The Family Leave and Medical Act of 1993, which grants new parents 12 weeks of leave to take care of their child, supports this law. Other than that, fair labor laws such as the Americans with Disabilities Act which protects the temporarily disabled, including pregnant women, governs workplaces in the USA.
Pregnancy as a Temporary Disability
Pregnant women often experience difficulties during their term. Most pregnant women usually get gestational diabetes, which is considered a disability under the American With Disabilities Act. So, if a pregnant woman could not continue her workload because of the impairments brought by pregnancy, she could be considered temporarily disabled.
As mandated by the law, an employer must provide accommodation for the disability related to pregnancy of an employee. For example, if a female employee usually lifts heavy objects as part of her job, the employer should give “light duty” to the employee instead.
An employer should only apply changes to the workload of a pregnant employee upon the request of the employee. If the pregnant employee can still perform the essential functions of her job, then there is no need to make such changes.
An employer should not refrain a pregnant employee from doing specific tasks or move the pregnant employee to another position on the basis of her pregnancy.
If a pregnant employee requests for any work changes, an employer must treat the appeal just like any other request from a temporarily disabled employee. An employer must undergo company procedures in processing the request.
For example, if company procedures require a certificate from a doctor to grant the request of lessening the workload of an employee, then an employer must demand the same from a pregnant employee.
Pregnancy and Employment
US laws prohibit the refusal of the owner to hire a pregnant woman solely on the basis of her condition. As mentioned before, this applies well to all aspects of employment.
Other than that, some laws support the needs of a pregnant woman in the workplace. Under the Fair Labor Standards Act, a pregnant woman has the right to pump milk at the workplace. Meanwhile, the Family Medical Leave Act reserves the right for pregnant women to have break time for nursing mothers.
Pregnancy and Insurance
As stipulated by the Affordable Care Act, companies with 50 or more employees must provide insurance for their workers. The Affordable Care Act also states that company insurance, no matter what kind, should include provisions covering pregnancy-related medical costs. Here are four notable points to remember:
- The company insurance should not impose any limitations regarding its coverage of medical expenses. It must cover the cost of using laboratory tests, ambulance, x-ray services, and other related activities.
- The company insurance should have the same percentage of recoverable payment of pregnancy-related expenses as the costs of non-pregnancy-related fees.
- The company insurance plan should also cover the costs of contraceptives.
- The insurance should also reimburse pregnancy-related medical costs like other medical costs; it should impose no additional charges.
Under the Pregnancy Discrimination Act, company insurance does not need to cover expenses arising from abortion. However, if complications in abortion threaten the life of the mother, then it must include those expenses.
Employers must also provide the same level of health benefits of spouses of male employees similar to the spouses of female employees. Employers could only refuse the grant of company insurance to new employees on the basis that they are pregnant when they enrolled in the plan.
Informing the Employer About the Pregnancy
According to pregnancy rights, the pregnant employee is not required to disclose her pregnancy to her employer. However, revealing this information is highly encouraged as the signs of pregnancy will appear over time. Moreover, a pregnant employee will need to inform her employer about her status to use the benefits and exercise her pregnancy rights.
What is Maternity Leave?
A considerable chunk of maternity rights is devoted to the right to 56 weeks of maternity leave of a pregnant employee. The first 26 weeks of this leave count as ordinary maternity leave. The following 26 weeks are additional weeks for the time off.
So, when does the maternity leave start?
A pregnant employee can take her maternity leave 11 weeks before the expected week of birth. However, a pregnant employee has the option to take her maternity leave earlier. As stipulated by maternity rights, a pregnant employee must let her employer know the desired start date of her maternity leave 15 weeks before her due date.
At the event of premature birth, the maternity leave will automatically start after the day of delivery. The pregnant employee will then be encouraged to find an appropriate support system to cope with the event if the workplace does not provide this. However, if the baby is stillborn or passes away after birth, the employee will receive full maternity rights.
What are the Benefits Stated in Maternity Rights?
A pregnant employee is entitled to a number of benefits during her maternity leave. The pregnant employee is liable to receive statutory maternity pay (SMP), which is payable for 39 weeks.
In the first six weeks, the pregnant employee should be receiving 90 percent of her average weekly earnings. But for the rest of the weeks, the employee would be paid with either the statutory maternity pay rate or 90 percent of her average weekly earnings. However, not all pregnant employees are qualified to receive statutory contractual pay.
To qualify, the pregnant employee must:
- be working for at least 26 weeks with the 15th week before the due date and
- have an average weekly earning that is more than or equal to the lower earnings limit for national insurance contribution.
Aside from the SMP, pregnant employees can receive contractual maternity pay and/or maternity allowance. Pregnant employees can receive contractual maternity pay as long as the employment contract promises this. The contractual maternity pay must not be less than the statutory maternity pay.
Since the contractual maternity pay finds a basis on the employment contract, there may be some provisions or guidelines regarding the compensation. For example, there may be a provision in the agreement requiring the employee to repay the maternity pay amount if the employee does not come back to work on time.
For this reason, a pregnant employee should discuss with her employer the guidelines on contractual maternity pay if the agreement provides this.
On the other hand, a maternity allowance is given to a pregnant employee if she is not qualified for statutory or contractual maternity pay. JobCentre Plus grants this allowance for 39 weeks. To qualify, a pregnant employee must be:
- working for at least 26 weeks (not necessarily consecutive) and
- earning at least £30 a week on average.
What is Pregnancy Discrimination?
Pregnancy discrimination is defined as “treating women unfavorably on the basis of pregnancy, childbirth, or related conditions.” However, this definition is too simplistic and broad to account for the different types of pregnancy discrimination experienced in the workplace.
To better understand this form of discrimination, here are some of the typical examples:
- An employer refuses to hire the pregnant applicant on the basis of her condition, not qualifications.
- The employer fires a pregnant employee on the basis of her status, not on performance.
- An employer refuses to grant the same or similar position to a pregnant employee after returning from a pregnancy-related leave.
- The employer treats the pregnant employee differently than temporarily disabled employees.
- An employer refuses to grant the health insurance coverage of the husband or partner for the pregnancy of the mother despite being covered in the current insurance plan.
The following situations may also constitute pregnancy discrimination:
- During a job interview, the employer asks the applicant if they are pregnant and how many children she has. Once the employer learns that she is currently pregnant, the employer asks the applicant to reapply after giving birth.
- The boss of a pregnant employee fires her after learning she was pregnant. The employee was still viable for work for several months despite her condition.
- An employer reprimands a pregnant employee for going to prenatal care. However, the employer noticeably treats his non-pregnant, temporarily disabled servants better than her.
Aside from these situations, unjust treatment towards a pregnant woman in job assignments, promotions, and benefits is pregnancy discrimination.
Harassment is another form of pregnancy discrimination.
It is unlawful to harass a female employee on the basis of her pregnancy, childbirth, and other pregnancy-related condition.
However, the harassment becomes illegal when it results in a hostile environment for the employee or adverse employment decisions. The supervisor, co-workers, and non-working personnel such as a client or customer of a pregnant employee can also commit persecution in the workplace.
Unjust treatment of an unmarried, pregnant woman also counts as a form of pregnancy discrimination. According to the Equal Employment Opportunity Commission (EEOC), which enforces the laws against job discrimination, maternity rights are not only for married individuals. It means that the scope of maternity rights also includes unmarried pregnant women.
However, there are instances where courts allowed companies with religious affiliations to terminate the employment of unmarried pregnant women. According to these companies, the basis of the termination was the employee engaged in premarital sex.
But for companies to raise this claim, they must show that they show the same treatment to male employees who did the same. If not, then the company may be charged for sex discrimination.
To protect herself from these acts of discrimination, a pregnant woman must be well-aware of her maternity rights in the workplace.
What to Do When Maternity Rights were Violated?
If the employer has refused to grant maternity leave or violated the maternity rights, here are the things the employee can do.
First, the pregnant employee must prepare a proof of the violation of her maternity rights by her employer. The employee may produce either discrete or circumstantial evidence.
As the name implies, discrete evidence directly implicates the violation of maternity rights by the employer. For example, during a job interview, the employer reasoned that they could not hire the pregnant applicant because they are not sure if the applicant can travel with a baby.
Meanwhile, circumstantial evidence may refer to an indirect admission of discrimination. The evidence must have strong implications of discrimination; else, it will not hold strongly in court.
Examples of circumstantial evidence include changes in behavior or “fishy” decisions after discovering the pregnancy of the employee. For this reason, the timing of circumstantial evidence is crucial in implicating discriminatory bias.
If the pregnant employee has prepared enough evidence to back her claims, she should first approach Human Resources. Most pregnancy discrimination cases can be resolved by talking directly to the employer or raising the matter to human resources. But if the pregnant employee observed no significant change in the current treatment towards her, she can proceed to file a lawsuit case on the court.
The next step is searching for a lawyer on this case.
Talking to an experienced lawyer can give advice and show the options of the employee regarding the matter. If the employee has secured a lawyer on her behalf, she must then proceed to obtain the right to sue from the EEOC or similar counterpart agency.
The letter of the right to sue is a legal requirement for a discrimination lawsuit. It must contain the employee’s name, employer’s name, and the evidence pertaining to the violation. The complainant should submit it the EEOC 180 days after the incident. If the employee files the letter 181 days or more after the fact, the EEOC may dismiss it.
After processing, the EEOC will send a copy of the letter to your employer. The EEOC may then either invite the employee and the employer to litigate the issue, conduct a further investigation, or intercede on behalf of the employee. However, the last one rarely happens.
In the case of litigation, the EEOC will issue a letter for you (if 180 days has passed since the filing of charges). However, the employee can request a letter from the EEOC.
Once the lawsuit case pushes through, the employee needs to convene with her lawyer to discuss the possible options and measures.
How to Apply for Maternity Leave
Before applying for maternity leave, an employee needs to determine the current maternity leave guidelines and application process in her company. Companies may require employees to fill out a maternity leave form or submit the maternity leave requirements to Human Resources instead of the employer.
In addition, the employee must take this opportunity to ask her eligibility for the maternity leave and other benefits. As mentioned above, statutory and contractual maternity pay have different qualifications. The employee must discuss this matter to Human Resources to verify if the employee is eligible to receive benefits while on leave.
After determining the process and qualifications for the benefits, the employee can now process her maternity leave. Since the law treats pregnancy as a temporary disability, companies may require medical certification as a requirement of maternity leave. The law stipulates that the pregnant employee must inform her intended start date of maternity leave 15 weeks before her due date.
Before taking her maternity leave, an employee should have discussed work arrangements with her employer. The employer may have some pending tasks that require completion before the maternity leave starts. He/She may need to delegate new responsibilities for the employee after she returns from her time off. The employee must already roll out a plan on how to deal with these tasks.
In addition to these steps, a pregnant employee can inquire Human Resources regarding the company policy on paternal leave. She may push for paternity leave for her partner given that it complies with the laws and company policy.
Can an employee return to work without finishing maternity leave?
An employee can return to work after completing the ordinary maternity leave (first 26 weeks). However, the employee must notify her supervisor regarding this change. Once the employee returns to work, she must still be in the same job and doing the same functions that she did before her pregnancy.
Does an employee need to pay back maternity pay if she does not come to work on time?
If the employee is in receipt of statutory maternity pay, then the employee does not need to pay back when she does not come to work after her leave ends. Even if the employee resigns during her maternity leave, she must still have the statutory maternity pay due to her.
On the other hand, contractual maternity pay may have some stipulations on that matter. Based on the contract, the company may require the employee to pay back the maternity pay if she does not come to work after the leave ends. But even if the employer requires the employee to pay back, she must only return her proceeds from the contractual maternity pay.
Can an employer dismiss employee while on maternity leave?
A dismissal of an employee is a form of pregnancy discrimination when the pregnancy of the employee is the basis. However, an employer can legally dismiss an employee on maternity leave so long as it is justified. For example, a division in the company where the employee on maternity leave closes; this scenario renders the employee as redundant.
However, the dismissal of the employee is not justified when it happens as part of the staff cuts in the company.
When an employer dismisses an employee on maternity leave, the employer will need to prepare a letter explaining the reason behind the decision. The employee should also receive pay in lieu of notice or normal notice period.
An employee who is already redundant has the right to ask for an alternative job. If the employee receives an offer, she is still subject to a four-week trial period.
Is maternity leave compulsory?
A company does not allow an employee to return to work two weeks after the birth of her child. Factories prohibit an employee from returning four weeks after the birth of her child.
How can a mother cope after leaving the baby to go to work?
For a lot of mothers, leaving their child to go back to work is difficult. Experienced mothers recommend the following steps to cope with this separation:
- Bring pumps: The employee can use her break time to pump breast milk for her child. Not only will she need to bring her pump, but she will also need to bring a big bag and some bottles for storage.
- Baby pictures: Some mothers commented that it is soothing to look at the picture of their child. If the employee feels anxious about the separation from her child, she may want to bring a photo to work.
- Take it easy: After being in maternity leave for so long, tasks and assignments may pile up on the employee. The employee should take it slow and easy as she transitions back to the hustle and grind of the workplace.