You just found out your employee is pregnant. Many employers hear this news with some measure of dread as they contemplate requests for months of maternity leave. Some of that dread is fueled by confusion about exactly what the law requires. Contacting a Washington employment attorney before doing anything else could not only calm your worries, but also prevent a costly mistake.
When thinking about maternity leave, the first thing that comes to mind for most people is FMLA. Indeed, FMLA does require maternity leave, but smaller employers are exempt, and not all employees qualify. (For more information on FMLA, go here for a wealth of blogs and podcasts.) But the analysis does not stop with FMLA.
First and foremost, it is illegal to discriminate in employment based on pregnancy. So, if you were thinking about taking care of this “problem,” by simply firing your pregnant employee, think again. (Specifically, think about whether you would want your wife, daughter, sister, friend, or yourself to get fired because of pregnancy.) The laws against pregnancy discrimination apply to more employers and employees than FMLA. In Washington, the Law Against Discrimination applies to employers with 8 or more employees. Some cities, including Seattle, have a similar law which applies to employers of all sizes.
Not discriminating against a pregnant employee obviously includes more than simply letting her keep her job. In fact, it includes some maternity leave. WAC 162-30-020, which discusses pregnancy discrimination under Washington law, says in part:
4) Leave policies.
(a) An employer shall provide a woman a leave of absence for the period of time that she is sick or temporarily disabled because of pregnancy or childbirth. Employers must treat a woman on pregnancy related leave the same as other employees on leave for sickness or other temporary disabilities. For example:
(i) If an employer provides paid leave for sickness, or other temporary disabilities, the employer should provide paid leave for pregnancy related sickness or disabilities;
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(iv) If the employer permits extensions of leave time (e.g., use of vacation or leave without pay) for sickness or other temporary disabilities, the employer should permit such extensions for pregnancy related sickness or disabilities.
(b) There may be circumstances when the application of the employer’s general leave policy to pregnancy or childbirth will not afford equal opportunity for women and men. One circumstance would be where the employer allows no leave for any sickness or other disability by any employee, or so little leave time that a pregnant woman must terminate employment. Because such a leave policy has a disparate impact on women, it is an unfair practice, unless the policy is justified by business necessity.
(c) An employer shall allow a woman to return to the same job, or a similar job of at least the same pay, if she has taken a leave of absence only for the actual period of disability relating to pregnancy or childbirth. Refusal to do so must be justified by adequate facts concerning business necessity.
Before denying a pregnant employee leave, even if you think it is justified by “business necessity,” please consult with a Washington employment attorney for advice about your specific situation.
Last updated: September 30, 2010
This article and information contained herein are intended for information purposes only; they are not intended as legal advice and should not be used as such. Any use of material contained herein is at your own risk. Your use of and access to this article do not create any attorney-client relationship between you and Rebecca E. Ary. You should consult an attorney in your state or jurisdiction who can provide advice appropriate to your particular situation. Rebecca E. Ary is licensed to practice only in Washington. The Law Office of Rebecca E. Ary may be reached at 1037 NE 65th St. #161, Seattle, WA 98115.
For Rebecca E. Ary, employment law is a high-stakes, highly personal area of law that holds the power to turn the fortunes of both individuals and businesses. The sense of betrayal, anger, powerlessness and loss of trust associated with failed employee/employer relationships can overwhelm even the most level-headed and seasoned professionals. Which is why hiring a skilled professional like Ms. Ary is so critically important. With a deep desire to help her clients and in-depth knowledge of employment law, Ms. Ary practices her craft with exceptional skill and attention to detail. She takes a balanced, analytical, strategic approach that allows the strength and fairness of the law to prevail. Ms. Ary’s talent for listening and her ability to develop a persuasive and creative strategy positions her clients for more positive outcomes. A skilled negotiator and litigator, Ms. Ary is well-respected by her peers and known throughout the legal community as a powerful advocate for her clients.
Ms. Ary received her Juris Doctorate degree from University of Washington School of Law and her Bachelor of Arts in Philosophy from University of California, San Diego. She was recently included in Super Lawyers 2010 – Rising Stars Edition, a national professional lawyer’s listing that recognizes a small percentage of all Washington state lawyers and identifies outstanding individuals who have attained a high degree of peer recognition and professional achievement in their field. Ms. Ary is a member of the Washington State Bar Association, the King County Bar Association, the Washington Employment Lawyers Association and American Mensa.
In her free time, Rebecca has served as a volunteer for NAMI (The National Alliance on Mental Illness), and Literacy Source, an organization dedicated to helping adults learn to read. She is an avid reader who also enjoys hiking, and spending quality time with Elaine, her cat.