Most guidance on this topic comes from the Pregnancy Discrimination Act (the “PDA”), which was passed in 1978 and includes pregnancy in the definition of sex discrimination under the Civil Rights Act of 1964, offering equal protection against discrimination to any employee who is pregnant. The PDA generally applies to employers with 15 or more employees.
In my opinion, the PDA is one of the more misunderstood employment discrimination laws. In short, the PDA forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. Said another way, under the PDA, employers must treat women affected by pregnancy or pregnancy-related conditions in the same manner as similarly-abled (or similarly impaired) applicants or employees. This means that as long as a woman is able to perform the essential functions of a job with or without accommodation an employer cannot refuse to hire, terminate, fail to promote, lay off, deny benefits, or otherwise treat her differently if she is pregnant, plans to become pregnant, or has a pregnancy-related condition.
So, does that mean you cannot ask when an employee plans to make maternity leave? No, but you need to be cautious. Generally, it is not recommended to go around asking if an employee is going to take maternity leave. However, at some point, most pregnancies become visibly apparent, and you likely need to plan for the continued operation and support of the company during the employee’s (possible) absence. So, can you ask – yes.
However, there are two important things to keep in mind. First, remember that the PDA is based on discrimination. If you are going to ask, you need to keep that information controlled, confidential, and ensure it is not utilized in any discrimination fashion.
Second, remember that even if you ask an employee about their maternity leave, the employee has no obligation to tell you she is pregnant if it does not affect her work and she does not intend to take leave, request accommodation, or otherwise avail herself of the protection of the laws or company benefits. Of course, many laws (like the FMLA) require advance leave notice, but an employee whose work is performed entirely remotely or who works for an employer on a piecemeal or freelance basis, for example, may never need or choose to disclose a pregnancy to her employer.
I hope this helps!
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