Pregnancy at Work: Employer Questions and Employee Disclosure

An employer or a prospective employer may not ask an employee or job candidate whether she is pregnant. Merely asking, or basing a hiring or promotion decision on pregnancy, is a violation of labor law and can result in legal liability against the employer. 

At some point, however, a pregnant employee is almost certainly going to need to disclose at least the fact of the pregnancy.

1)      An employer can’t discriminate against an employee on the basis of real or prospective pregnancy, except in very limited circumstances: discrimination on the basis of pregnancy is prohibited by the federal Pregnancy Discrimination Act (PDA). Most states also prohibit discrimination on the basis of pregnancy.

2)      Pregnancy is sometimes considered a disability for these purposes, and the Americans with Disability Act sometimes applies—if the pregnancy has medical complications, an employee may ask for reasonable accommodations for a pregnancy. This may include: changed duties, reduced hours, time off for doctor visits. If it’s a problem pregnancy and the employee needs even more accommodations that most pregnancies require, the employee has to ask for them at the first reasonable time. Similarly, if anything about the pregnancy will affect the employee’s job performance, this condition needs to be disclosed to the employer, to allow the employer a chance to accommodate reasonable requests—for example, the employee not being able to go on business trips or lift heavy objects.

3)      The employer has a right to know about any paid time off a pregnant employee will  need to take, as well as protected or guaranteed unpaid time off, including  time that will be requested under the federal Family and Medical Leave Act ( FMLA); also, leave allowed under a range of individual state laws. Not all employees, however, are covered  by the FMLA.

4)      To the extent that the pregnancy will impact on job performance in some fashion—i.e., any change in job duties, requiring changes in plans or schedules, or requiring time off from work —the employee needs to tell the employer. However, she only needs to tell the employer to the extent these things will occur. If, for example, someone could work without changes in duties or interruption, up to the date of delivery, then simply take three days for the birth, and then returns to work, the employee’s only obligation would be to provide whatever notice is required under normal company policy for three sick, vacation, or personal days.

The employer’s legitimate interest is in the quality of the employee’s work, without reference to their medical condition. Only elements or performance factors directly affecting work need to be disclosed by the employee, and then only as they reasonably come up. The risk, however, in not communicating more than the pregnant worker thinks is necessary is if the failure in communication leads to violation of reasonable company policies regarding the giving of notice about a disabling condition.  

A pregnant employee does not have to disclose whether she intends to return to work after having a child. There is no obligation to provide this information in advance under employment law. Remember: most employees are “employed at will,” which means either the employer or employee can usually end the employment relationship at will.

The key to treatment of pregnant workers is that they are not to be singled out or treated unfairly, compared to other workers with medical conditions. Examples of how this plays out may include requests for leave...if there is a thirty-day leave policy for medically recommended leaves, then a pregnant worker is similarly entitled to a thirty-day leave. The pregnant worker is not, however, entitled to more than that. If work performance suffers because of the pregnancy, then the employer may nevertheless discipline the pregnant worker for the poor work performance. If, however, the pregnant worker can document there are exacerbating or complicating medical factors associated with the pregnancy, and these were communicated to the employer, then the ADA may require the employer to accommodate those disabling conditions.