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Nyemaster Goode Top Ten List: No. 9 - Silent Night: Your Employee Mother and Child

By Fran Haas

The holiday season reminds us of all the joy a newborn brings to the world. On a more practical note, the season may also remind employers of a growing number of laws implicated by pregnant or recently pregnant employees. Below are a few thoughts to keep in mind when reviewing and applying maternity-related policies.

The newer law to keep in mind with new mothers is the Affordable Care Act, which requires employers to provide a new mother with the appropriate space and break time to express breast milk for a one-year period following birth. An employer is not required to compensate an employee who takes breaks during work to express breast milk. An employer must provide a comfortable space for an employee to use a breast pump--meaning an outlet will be required. The space must also be "free from intrusion," which generally means the employee must be able to lock the door from the inside of the protected space. Keep in mind that bathroom stalls are not adequate spaces because they are not deemed sufficiently private.

The Family and Medical Leave Act ("FMLA") provides eligible employees with up to twelve weeks of unpaid leave for the birth of a child. A mother may also use FMLA leave for serious health conditions that often crop up during pregnancy. Leave that a mother takes during a pregnancy may be deducted from the twelve-week leave period following the birth of a child. The FMLA also provides fathers with protected leave to care for a newborn or to care for a spouse who is recovering from birth.

If an employee is not eligible for FMLA leave, she will in all likelihood qualify for pregnancy leave under the Iowa Civil Rights Act, which provides for eight weeks of unpaid leave for a pregnancy-related disability. Most treating physicians will furnish medical certification that establishes the birth of a child as a pregnancy-related disability. This leave applies to all pregnant employees regardless of their tenure or work schedule (part-time employees are covered). Because fathers do not experience pregnancy-related disabilities, they are not eligible for pregnancy leave under the Iowa Civil Rights Act.

Some new mothers experience impairments from pregnancy or birth that qualify for protection under the Americans with Disabilities Act and the disability-discrimination prong of the Iowa Civil Rights Act. Typically, the accommodation requested is additional leave. Like other disabilities, an employee who seeks any accommodation for a pregnancy-related disability, including additional leave, is required to provide notice. An impairment that a newborn experiences does not qualify the employee for protection under the ADA or disability-discrimination provision of the Iowa Civil Rights Act. However, the FMLA may be implicated depending on the employee's eligibility.

Finally, the Iowa Civil Rights Act and federal Pregnancy Discrimination Act prohibit employers from discriminating against employees on the basis of pregnancy. These laws also prohibit employers from retaliating against an employee who exercises a pregnancy-related right.



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