Picture this common scenario (maybe it’s happened at your company): One of your employees has just come to you telling you that she is pregnant. You know this is good news. You are trying to act like you are thrilled. But at that moment, you can really only think about one thing - what this means for the company.
Please don’t panic. What you should do now is take a deep breath and accept the fact that you need to dive head-first into the deep end of HR. It’s going to be okay. We’re here to help. Start by focusing on these three areas:
1) Determine maternity leave protections
First, determine how much time off your employee will be entitled to. This may well be her first question to you. Unfortunately, there is not a simple answer due to the fact that there are various federal, state and local laws that provide for protected time off and they are not necessarily uniform. Some leave laws run consecutively (with different types of leave taking effect one after the other) and others run concurrently (meaning your employee can claim various types of leave at the same time). This means that you need to research maternity leave laws specific to where your pregnant employee works.
The most well-known law is the Family and Medical Leave Act (FMLA), which provides eligible employees with up to 12 weeks of unpaid job and benefits protection. Employees who have worked for your company for one year (at least 1,250 hours in the 12 months prior to the start of the FMLA leave) and work at a location with 50 or more employees within a 75-mile radius of one another are considered FMLA-eligible. If your employee is not entitled to leave under the FMLA, you should verify if there are any other job-protected leaves she may be entitled to. This can vary by state, location or circumstance.
If your employee isn’t eligible for any job-protected leaves, you’ll want to think about how much time off you want to provide to her. This is an important decision because how you handle the first maternity leave your company encounters will set a precedent for future leaves. If it seems untenable to function with this position vacant consider, instead, how long would it take for you to recruit and train another employee. It might be that having your employee out for eight or 12 weeks isn’t so prohibitive after all!
It may make sense to hire a temporary employee to hold the position down – or to train a few other staff to perform the major functions of the job - until your new mom is ready to come back from her leave.
2) Consider a paid leave policy
Your employee will likely ask you if the organization offers any paid maternity leave. Paid maternity leave is becoming increasingly more common, even among small to midsize businesses (SMBs). In fact, depending upon where you do business, it can be a critical benefit to attract and retain the key talent you need to be competitive.
Generally a paid leave policy will take shape in one of two ways:
A word on adoptive parents and spouses/partners of those who are pregnant: If you are going to provide a paid leave benefit to new moms, you’d be wise to do the same for all new parents, even the ones who aren’t physically carrying a child.
The key to establishing a fair leave policy is to determine how much of the pregnant employee’s leave is considered the “disability” portion of the leave and how much of it is considered “baby bonding” leave. Offer the same paid baby bonding leave to all new parents. Not doing so can be viewed as discriminatory and get you into trouble! TriNet can help you figure out how to structure a maternity leave policy.
3) Be accommodating
Your employee may make requests for accommodations throughout her pregnancy and she is entitled to do that. The name of the game here is “flexibility.” She is afforded the right to request an accommodation under the Americans with Disabilities Act (ADA). Some states and local jurisdictions also provide for this right. Your obligation is to work with your pregnant employee to support her to be both a healthy expectant mother and a great employee.
Your pregnant employee may need flexible scheduling to attend prenatal appointments or maybe she is experiencing morning sickness - or has a long commute and needs to avoid peak commute times. She may need more breaks to use the restroom or rest if her job requires frequent standing or movement. She may also end up needing a leave of absence during her pregnancy should she experience pregnancy-related complications.
The key is to work with her. Listen to her if she conveys concerns, expresses limitations or requests accommodations. Make it a priority to understand what she needs and establish a game plan to meet those needs. Importantly, educate your managers to know what a request for accommodations may look like (they are not necessarily always overt) and that failing to accommodate her needs would be done at the company’s peril.
You can see that while this is an exciting time for the employee, there is also a lot to think about for the organization. In fact, we’re just scratching the surface of the things you need to consider when you have an expectant employee. Keep in mind that even if the leave is not job-protected, terminating an employee before, during or right after their leave, eliminating their position, hiring replacement employees or any other acts that alter the terms and conditions of their position may expose your company to claims of discrimination and retaliation.
It’s important to partner with HR and legal counsel to ensure that you are compliant with all legal requirements. This is a happy but stressful life event for your employee. The most important thing you can do for your employee is to show you support her; while the most important thing you can do for your organization is to educate yourself on your obligations to her.
This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.
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