248-409-1900 dburke@mi-worklaw.com

By:  Rhonda Armstrong – 5/8/14

Happy Mother’s Day! With Mother’s Day upon us, it’s a good time to recap what Michigan employers’ responsibilities are with respect to non-discrimination, handling leave, and light-duty requests for expectant mother employees.

Non-Discrimination

The most common pregnancy-related discrimination claims are brought pursuant to the federal Pregnancy Discrimination Act (which prohibits discrimination on the basis of pregnancy, childbirth, or related conditions), and laws prohibiting sex discrimination (e.g., Title VII and Michigan’s Elliott-Larsen Civil Rights Act). The Family Medical Leave Act (FMLA), largely known for its leave provisions, also prohibits retaliation against employees.

Clearly, firing or disciplining someone solely because they are pregnant would be a clear violation of the no-discrimination laws. But, here are a few examples which would likewise land an employer in hot water quick:

  • Terminating an unwed female employee because she got pregnant out of wedlock (likely also marital status discrimination under Michigan law);
  • Treating an employee who had an abortion differently;
  • Not offering the same types of leave/benefits to pregnant employees as that offered to others with short-term disabilities;
  • Not permitting an employee to use a breast pump at work;
  • Not allowing employees to come back to work until you feel they are safe or prohibiting employees from working because you feel it is unsafe for their unborn child.

 To date, courts have generally found leave or accommodation needs related to childcare (e.g., different or part-time schedules after a child is born) to be outside the purview of non-discrimination laws. And, while some employers have succeeded in treating pregnant employees differently for certain reasons (e.g., flight attendants who must be ready to help with passengers in emergency situations), this defense has not gained much court support (particularly with respect to across-the-board policies).

How much pregnancy/related leave must you provide?

If you are an employer with 50 or more employees, the answer is fairly clear-cut. You are covered by the Family Medical Leave Act (FMLA), and it requires employers to provide eligible employees with up to 12-weeks of unpaid leave in a 12-month period (which is measured a variety of ways, per the FMLA and depending on your written policy). Eligible employees include those who have worked for the employer for 12 months, have worked 1,250 hours in the prior 12 months, and work at a covered employer’s worksite where at least 49 other employees are employed within a 75-mile radius. Employers must be careful when navigating their responsibilities with respect to pregnant employees under the FMLA, as there are many rules regarding when certification may be requested, appropriately designating the leave, etc.

If you are a Michigan employer who is not covered by the FMLA and/or an employee does not meet the FMLA eligibility requirements, the answer is not so clear-cut. The only laws now in place to protect this group of employees are the non-discrimination laws which do not provide any clear answers. However, terminating an employee for missing work because of the standard 6 week inability to perform due to pregnancy and childbirth would be extremely risky. Our firm’s experience has been that courts are less inclined to dismiss pregnancy discrimination cases than most other discrimination cases.

Do you need to accommodate pregnant employees (beyond leave obligations)?

As set forth above, state and federal law requires employers to treat pregnant employees similar to how they treat others with short-term disabilities. Therefore, if an employer has provided light-duty assignments to workers with short-term disabilities, then it should do the same for pregnant employees. Prior to 2009, Michigan case law permitted employers to favor employees with respect to workers-comp/light-duty assignments, but Michigan amended its statute to specifically prohibit employers from treating pregnant employees different than those in other categories (in an apparent effort to override a court decision on the issue).

For employers covered by the Americans With Disabilities Act, while cases have held that pregnancy alone is not a “disability,” other cases have held that certain conditions may bring an employee within the ADA’s protections (e.g., employees with pregnancy complications such as back pain, spotting, dizziness, etc.). Once within the ADA’s protection, an employer has the duty to accommodate the employee’s disability unless to do so would pose an undue hardship.

Employers should be on the lookout, however! Some states have enacted laws that require employers to accommodate pregnant employees, but to date Michigan has not joined these ranks.

Employer Take Aways

Obviously, when the FMLA is implicated, employers must offer FMLA leave. But, even beyond that, employers need to offer at least SOME leave time. While no law now dictates a minimum amount for Michigan employers, we generally recommend at least 4-6 weeks. This is likely adequate to demonstrate that the employee has sufficiently healed from childbirth (to defend claims that the actions were related to childbirth-related conditions) and is probably what most would consider the bare minimum for a new mom. If employers have safety or other concerns, it is wise to involve counsel to evaluate what, if any, options the employer has under the circumstances. In our experience, we have found it increasingly difficult to defend pregnancy-based claims due to, among other things, juror sympathies. Jurors tend to empathize with the new mom who just got fired and now can’t support her newborn, even when the employer’s actions are legally defensible and justified.