Due to the vast number of female employees in the chiropractic field, the subject of employee pregnancy arises frequently.
Many chiropractors fail to abide by federal law in their dealings with pregnant employees because they aren’t familiar with the legislation protecting a pregnant employee: The Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA). But a lack of knowledge regarding these laws can be costly and lead non-compliant chiropractors straight into disputes with labor boards.
Know the law
The FMLA was added to Title VII of the Civil Rights Act of 1964 on October 31, 1978, and it applies to employers with 50 or more employees. Covered employers must provide up to 12 weeks of unpaid leave to eligible employees for the following reasons: birth and care of the employee’s newborn child; care for a child after adoption or foster care placement; care for the employee’s spouse, child, or parent with a serious health condition; or for a serious health condition that affects the employee’s ability to work. This federal law also addresses hiring, maternity leave, health insurance, and fringe benefits for pregnant employees.
The Family and Medical Leave Act provides that women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits, as other persons not so affected but similar in their ability or inability to work.
Employers are prohibited from refusing to hire someone who is pregnant because of her pregnancy. The act also mandates that employers allow pregnant women to continue their work as long as they are able to perform their job- related tasks.
In addition, employers must hold the pregnant employee’s job open during her maternity leave for the same amount of time that jobs are held open for employees on disability leave. The federal law also states that health insurance provided by an employer must cover expenses for pregnancy- related conditions.
Finally, the same benefits that are provided to workers on disability leave should be given to employees on maternity leave. This includes temporary disability benefits, accrual and crediting of seniority, pay increases, and vacation calculation.
The Pregnancy Discrimination Act (PDA), which applies to employers with 15 or more employees, also prohibits discrimination against pregnant women. The PDA guarantees that pregnant women are provided with the same opportunities and benefits as non- pregnant employees who are similarly limited in their ability to perform their job responsibilities. But if a pregnant employee is unable to fulfill her job functions, employers are not required to provide accommodations.
Furthermore, most states have enacted their own pregnancy discrimination laws. Many states have also lowered the covered-employer threshold to those employers with fewer than 15 employees.
When federal or state pregnancy laws apply to your chiropractic office, it is important to be aware of and to adhere to certain guidelines. If the pregnant employee refuses or is unable to perform certain tasks, such as lifting heavy equipment or taking patients’ X- rays, then the employer must determine what accommodations may be needed.
For example: The employer may shorten the employee’s workweek or eliminate certain tasks such as lifting, taking X-rays, or working around hazardous materials.
If the accommodation would cause an undue hardship and require significant difficulty or expense for the employer (taking into consideration the number of employees in the practice, the expense of the accommodation, the financial resources of the practice, and the impact of the accommodation on the practice), then the employer may deny any accommodation.
If the employee is unable to perform job-related tasks and the employer is unable to provide accommodations, then the employer must determine whether the tasks are essential to her job and, if so, whether another employee may take over those tasks. If another employee is unable to perform those job-related tasks, then it may be prudent to provide an unpaid maternity leave.
In addition, when federal or state laws apply to a chiropractic practice, the chiropractor must remember that it is illegal to deny employment or promotions, or to fire a female employee because she is pregnant.
Pay it forward
Employers should also be aware that pregnancy leave is generally extended without pay.
The employee may use any paid vacation or sick time accrued, however, as part of her pregnancy leave. Typically, pregnancy leave is four to six weeks, but it may be extended up to 12 weeks if the pregnancy involves complications.
Finally, employees returning from a pregnancy leave are entitled to return to their former or a similar position at the same work schedule and pay, unless there is a legitimate business reason as to why that job is no longer available.
If federal or state pregnancy laws do not apply to your office but you wish to provide pregnancy leave either to retain a good employee or to be competitive with other practices, you must establish a leave policy and ensure it is administered in a consistent and nondiscriminatory way.
To be safe, whether or not federal or state laws apply to your practice, you should take certain actions upon discovering that an employee is pregnant. Sit down with the employee and inquire about her plans for returning to work after delivery.
It would be a good idea to ask the employee about her estimated delivery date and whether she will have any health restrictions that would limit her ability to adequately perform her job functions. In addition, the employee should sign a release that states that she has been informed of the risks that her job poses to her health and that she accepts all responsibility for protecting herself and her child from exposure to all risks associated with her job.
Women are a protected class, and if an employee’s pregnancy is handled inappropriately, her employer could end up in court, incurring costly fees, and time away from the practice.
Therefore, it is important that employers familiarize themselves with the laws that apply to such employees.
Stuart J. Oberman, Esq., is the founder and president of Oberman Law Firm, a midsize practice in the Atlanta area. Practicing law for more than 23 years, he handles a range of legal issues for chiropractors, including employment law, cybersecurity, practice sales, real estate transactions, lease agreements, OSHA compliance, chiropractic board complaints, and professional corporations. He can be contacted through obermanlaw.com.