by Christina Santillo, SHRM-CP, Senior Human Resources Consultant
When a new hire informs an employer that she is pregnant, it’s important for employers to respond with clarity and support.
New Hires Who Do Not Qualify for FMLA
Employees are only eligible for FMLA after meeting specific service and hours-worked requirements. However, employees who do not qualify for FMLA may still be entitled to workplace protections and accommodations under the Pregnant Workers Fairness Act (PWFA) and the Americans with Disabilities Act (ADA), as well as applicable state laws. These laws require most employers to provide reasonable accommodations for pregnant employees, including time off when medically necessary.
Pregnancy and the ADA
While pregnancy itself is not automatically considered a disability, pregnancy-related conditions and recovery from childbirth may qualify as a disability under the ADA. Employees who need time off to recover from childbirth should be evaluated through the ADA interactive process to determine whether a reasonable accommodation, such as a medical leave of absence, is appropriate.
This applies even when the employee does not qualify for FMLA. Blanket denials of leave requests can create legal risk.
Pregnancy and the PWFA
The PWFA is a relatively new federal law (effective June 2023) that also comes into play when any employee is pregnant. Like the ADA, the PWFA requires employers to consider reasonable accommodations for any pregnant employee. However, the PWFA covers all pregnancy-related limitations, regardless of severity. Therefore, accommodations may be required before the employee needs leave due to childbirth. In fact, under the PWFA, leave cannot be mandated if another reasonable accommodation is available.
New Fathers and Bonding Time
For new hires who are fathers or non-birthing parents seeking time off solely for bonding, the situation is different. If there is no medical need, employers are generally not required to provide leave under the ADA. Though an employer who is covered by FMLA is required to grant up to 12 weeks of unpaid leave for an eligible employee to bond with a new baby, since a new hire would not meet the hours-worked requirements for FMLA eligibility, FMLA is likely not a consideration in this case.
Employers who offer bonding leave, whether paid or unpaid, must make the leave available equally to both men and women to comply with anti-discrimination laws. They may, however, establish eligibility requirements regarding length of service.
Consider a Parental Leave Policy
To promote consistency, employers may want to consider offering a parental leave policy that provides bonding time for all parents, regardless of gender or medical status. This leave could run concurrently with FMLA or a non-FMLA medical leave for your pregnant employee.
Train Leaders
Employers should train managers to recognize when ADA or PWFA obligations may apply and ensure requests are handled consistently and thoughtfully.
If you are an employer with questions about leave policies, leadership training, or if you have questions about any HR issue, contact our Risk Management Division by phone at 855-873-0374 or by email at . We will be happy to help!
Disclaimer: This information is for informational purposes only and not for the purpose of providing legal advice. This article does not create an attorney-client relationship between Keystone’s Risk Management Division and the reader.