Sonia Pressman Fuentes on Pregnancy Leave, Parental Care Leave, and the Law
Dear friends,
Again we are fortunate to have guest forum presenter Sonia Pressman Fuentes, one of the founders of the National Organization for Women (NOW) and a lawyer with expertise in Title VII, to tell us about the law regarding leaves for pregnancy and after childbirth, and to answer questions you may have in the Comments below the text. Read her description below. Best, Laura Hoopes
Laws with Regard to Pregnancy and Childbirth (as of June 10, 2010)
One of the early questions the Equal Employment Opportunity Commission (EEOC) faced after it commenced operations on July 2, 1965, was what the prohibition against sex discrimination in employment meant with regard to pregnancy, childbirth, delivery, and post-delivery for applicants for jobs and employees. The principal issues were:
1. Could an employer refuse to hire a qualified applicant who was pregnant?
2. Could an employer fire an employee because she was pregnant?
3. What rights did an employee have during pregnancy, delivery, and post-delivery with regard to sick leave and other leaves of absence and benefits in connection with such leaves?
The answers were:
1. An employer could not refuse to hire a qualified woman applicant who could perform the job involved simply because she was pregnant, and
2. Employers must permit pregnant employees to do their jobs for as long as the employees are capable of performing their jobs.
The crunch came in deciding the third question: What rights did a pregnant woman have with regard to sick and annual leave and benefits in connection with pregnancy, childbirth, and post-delivery?
In 1972, I drafted the Commission's guidelines on pregnancy and childbirth, which stated that each covered employer would need to provide the same sick leave and other leave and benefits to women during pregnancy, delivery, and after-delivery as the employer provided to employees generally who were either sick or needed time off for other reasons.
In 1978, the Pregnancy Discrimination Act (PDA) became law. It amended Title VII by basically incorporating the Commission's guidelines on pregnancy and childbirth. To this day, very few people understand the guidelines and their later incorporation into the PDA. I, therefore, made my own formulation of what Title VII provides.
There are three relevant periods in connection with leave and pay related to pregnancy under Title VII:
1. Pregnancy;
2. Delivery; and
3. Post-delivery.
During the short period of no. 2, above (Delivery), a woman is clearly temporarily physically disabled and is entitled to whatever benefits (leave, pay, etc.) the employer provides for employees generally who are temporarily disabled. (What the woman would be entitled to would probably be related to her length of employment.) During 1 and 3 above (Pregnancy and Post-delivery), if the woman is temporarily disabled due to her pregnancy, she is also entitled to whatever benefits (leave, pay, etc.) the employer provides for employees generally who are temporarily disabled. (Of course, if, during these times, she is temporarily disabled for reasons not connected to her pregnancy, she would also be entitled to the employer's regular sick leave and sick pay benefits.) During pre- and post-delivery, if the woman is not sick or physically unable to work, but wants time off to prepare for the birth of her child or to care for the child, she is entitled to whatever benefits the employer provides to employees generally who want time off for personal reasons. With regard to time off pre- and post-delivery, one cannot look only at what is written employer policy. One must investigate what the employer has actually done with regard to employee requests for time off for personal reasons. (I don't know how far back in time one would go to determine this.) One would need to investigate what the employer involved has actually done vis-à-vis time off and benefits for employees who sought time off for reasons such as visiting a relative, taking an educational course, or engaging in other personal activity.
There is another federal law that comes into play with regard to the rights of pregnant women and that is the Family and Medical Leave Act (FMLA), which President Clinton signed into law in February of 1993. That law requires employers to provide their employees with up to twelve weeks of unpaid, job-protected leave each year in connection with the birth or adoption of a child, the serious illness of a child, spouse or parent; or the inability of the employee to work because of a serious health condition. A woman's disability in connection with pregnancy or her desire to take time off before or after the delivery of a child are conditions that would be covered by this act.
The U.S. and Australia are currently the only developed economies in the world that provide no paid maternity leave. Starting on January 1, 2011, when Australia's law on parental leave becomes effective, the U.S. will be the only such country.
In 2002, California pioneered the first paid family leave law in the country and some other states are looking at similar proposals. There is a campaign spearheaded by Momsrising.org to get legislation enacted on the state level (1) mandating paid maternity and paternity (or family) leave and also (2) strengthening unpaid leave laws in the eleven states that have such laws. Five states-California, Hawaii, New Jersey, New York, and Rhode Island-and the Commonwealth of Puerto Rico provide, or require employers to provide, short-term disability insurance benefits, all of which pay benefits for pregnancy, childbirth, and related disabling medical conditions.
Minnesota and New Mexico have active at-home infant care (AHIC) policies that provide eligible, lower-income working parents with additional income to help them defray the cost of staying home with their newborns or newly-adopted children. Montana enacted a statute creating an AHIC program, but the legislature has not yet provided funding.
In a related area, there are currently no federal or state laws requiring employers to provide sick leave benefits to employees. There is proposed federal legislation, the Healthy Families Act, which would guarantee employees a certain number of paid sick days a year to recover from an illness or care for a sick family member. The National Partnership for Women and Families, the Institute for Women's Policy Research, and Momsrising.org are campaigning for passage of the Healthy Families Act and other legislation on state and city levels.
In two U.S. cities, San Francisco and Washington, D.C., there are laws that require certain employers to offer paid leave, and in Milwaukee a referendum passed requiring employers to offer certain numbers of paid sick days per year to employees. New York City is currently considering such legislation. It does not appear, however, that the Healthy Family Act and these city laws requiring paid sick leave apply or would apply to disability in connection with pregnancy and childbirth.
Click here to visit: Sonia Pressman Fuentes' website
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Oops, sorry. Well women's rights are admittedly one of my favorite parts of the Civil Rights we have! But I didn't mean to misrepresent your talk.
cheers,
Laura
Laura:
My talk at Cornell on April 22, 2009, wasn't my most recent speech. But it's my most accessible comprehensive recent speech since it's available online via this Cornell Repository.
I gave a talk at the University of Tampa on Oct. 3, 2009, that concentrated on current issues in the women's rights field but did not also deal with the past as my Cornell talk did. I have an upcoming talk for students at New College in Sarasota that will deal with the US Supreme Court.
Best,
Sonia
Hi Sonia and others interested in these issues:
I am posting a new thread directing you by clickable links to Sonia's most recent speech on Civil Rights. Watch for it on the new postings.
cheers,
Laura
Laura:
Here's the e-mail I sent to your regular e-mail address on Wed. 8/4 at 8:31 p.m.:
I posted on your website about the availability online of a speech I gave. I just ran across it. It’s called:
"The Beginning of the Second Wave of the Women's Movement and Where We Are Today: a Personal Account"
It’s available at:
http://scholarship.law.cornell.edu/clsops_papers/54
On the regular e-mail I sent you, the URL turns blue and becomes a hyperlink. Here it did not.
Best,
Sonia
Hi Sonia,
I just scanned my email, and although there are hundreds of messages and maybe I just missed yours, I couldn't find it. I'm not on my own computer because I'm out of town, but if you could send the URL again, I would appreciate it!
Cheers,
Laura
Laura:
I did send you the URL for the talk I gave on the women's rights movement at the Cornell University School of Law on April 22, 2009, to your e-mail address, not the scitable.com website.
Please let me know if you did not receive it.
Best,
Sonia
Dear Appreciating Help:
Thanks for writing in, but please remember that the employer's policies may not all be written in the handbook. If the employer has gone beyond the handbook and given one or more employees sick or annual leave beyond what is spelled out in the handbook, women employees in connection with pregnancy-related leave may be entitled to the same privileges.
Best,
Sonia
Hi Sonia,
This is all good information and particularly in that it lets me know what specifically to look for in my employee handbook, i.e. policies on time of service before various options might be available.
Dear Sonia,
Please do send me the URL by email and I can then put it up on a supplementary posting.
Thanks for all the great responses!
Laura
Dear Laura:
Thanks for your kind words. It is a pleasure for me if I am able to provide informative help to your readers.
The posting problem seems to be resolved.
Since your readers have been so responsive, the following occurred to me. A little over a year ago, I gave a talk on the women's rights movement, past, present, and future at the Cornell University School of Law (the Cornell University undergraduate school is my alma mater). The talk is in a legal repository that Cornell maintains and is available online. Although it was given a little over a year ago, it is a good comprehensive review of the subject. If you would like it for your readers, I can send you the URL for accessing it.
Best,
Sonia
Dear Double Dipping:
No, there is no limit on the number of pregnancies an employee can rack up. She can have nineteen, if she so chooses, like the Duggars have (so far).
However, please remember that the amount of (1) sick and annual leave and (2) leave under the Family and Medical Leave Act to which an employee is entitled will depend in (1) on the amount of sick and annual leave that employer provides and to which that employee is entitled by length of service or whatever conditions the employer sets; and (2) by the language of the FMLA, which provides employees up to twelve weeks of unpaid, job-protected leave each year.
Best,
Sonia
Dear Sonia,
I don't see anything above about a limit on using this leave for more than one pregnancy, so I assume there is no such limitation, right? It makes sense that some employers might want to limit repeat customers, but women need to be able to do their own family planning.
Hi Sonia,
I am out of town now until Monday so I hope you won't have any more trouble posting because I don't have the email addresses with me. If you do, we can try to straighten it out next Monday and get you the help you need then; just let people wait for responses if need be. We are so fortunate to have your expertise I definitely don't want to inconvenience you.
This is such useful information and I'm sure women who read it will find it's complete and very to-the-point. The law is on the side of the pregnant woman as long as she understands it, it seems to me. Partly because of how you helped to interpret it some time ago, but also because it always was a supportive law (or they were supportive laws, more appropriately).
cheers,
Laura
Hi All:
Good article in today's NYTimes online about the need for
paid parental leave: "A Market Punishing to Mothers" at
http://www.nytimes.com/2010/08/04/business/economy/04leonhardt.html?hp
Best,
Sonia
Dear Curious:
You need to read my article again. When a woman is pregnant and working, she is not necessarily entitled to sick pay except during delivery and during any times before and after pregnancy that she is actually ill or temporarily physically disabled. She may be entitled to paid annual leave if her employer provides paid annual leave to women who are not temporarily disabled before and after pregnancy or has provided paid annual leave for employees in general for reasons comparable to the reasons the woman wants time off.
When I worked for federal agencies and corporations, paid sick leave was the same as regular pay, but this may depend on the employer.
I don't know what you mean by asking whether employers might consider paying regular salaries instead of paid sick leave. My article did not deal with what employers might consider but with what the law requires. An employer might consider anything, depending on the particular employer, and it would be acceptable provided that it was in conformance with the law.
Best,
Sonia
Dear Sonia,
I've been told by friends that sick leave pay isn't as much as regular pay. I suspect having a child might cause more, not less expenses. Do you think employers might consider paying the regulary salary instead of having pregnant women go on sick leave?
Dear Worried:
I haven't kept up with developments on city and state levels since I wrote this article in June but the fight for paid parental leave goes on. A good place to check developments in these areas is momsrising.org
Dear Thinking It Over:
I'm delighted that my article has been helpful to you. Nice of you to let me know that. Good luck with your decision.
Best,
Sonia
Dear Sonia,
Do you know if any of these previsions are being reconsidered today? Do we need to be lobbying to keep these benefits intact?
Wow, this is really comprehensive. Thanks! I'm considering having a child, and this recap of the current laws gives me a good perspective.
