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Pregnancy Leave: What’s Required?

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This blog is fourth in a series about pregnancy leave. To read the first three blogs in the series, click here

While paid pregnancy leave, maternity leave and parental leave are common in many countries, there are no federal laws mandating paid leave in the United States. However, there are laws which require employers to offer a minimum level of unpaid leave to pregnant employees.

Understanding minimum leave requirements is imperative for employers and is a step toward reducing the risks of pregnancy discrimination claims in the workplace. It also can provide employers with a great base line for determining which benefits they choose to provide pregnant employees.

Main Source of Leave: FMLA

Under federal law, an employee’s main source of pregnancy leave would arise under the FMLA (The Family and Medical Leave Act of 1993). According to this law, eligible employees are entitled to up to 12 workweeks of unpaid leave each 12-month period, according to this law. As an employer, you have four options for calculating when that 12-month period begins and ends:

  1. calendar year (Jan. 1 through Dec. 31)
  2. fixed “leave year” (can be based on any 12-month period, such as a fiscal year, or based on the employee’s anniversary date)
  3. 12-month period beginning with the date the employee’s first FMLA leave begins
  4. 12-month period that looks backward from the date the employee’s first FMLA leave begins.

The FMLA does not guarantee paid leave. However, an employee may elect to use, or the employer may require the employee to use, any accrued paid leave as part of the employee’s FMLA leave. Using accrued paid leave does not extend the amount of leave an employee is entitled to take under the FMLA beyond 12 weeks.

The 12 weeks of leave provided under the FMLA also may be limited in circumstances when both the pregnant employee and her spouse work for the same employer. In these instances, the pregnant employee and her spouse will be limited to a combined 12 weeks of leave.

Leave Requirements and the ADA

The Seventh Circuit recently held that the ADA (Americans with Disabilities Act) does not require employers to give workers extended additional leave after their 12 weeks under the FMLA ends. In Severson v. Heartland Woodcraft, Inc., the Court held that a long-term leave of absence could not be considered a reasonable accommodation and that the ADA was intended to be an antidiscrimination statute, not a medical-leave entitlement.

Although a pregnant employee may be entitled to “a brief period of leave” as a reasonable accommodation under the ADA, she likely will not be entitled to take extended leave on the basis of a pregnancy disability after exhausting all FMLA leave for the same pregnancy-related conditions. For example, a pregnant employee could not take 12 weeks of FMLA leave after the birth of her child due to medical conditions and then, upon the expiration of those 12 weeks, request 2 months of extended leave for that same medical condition as an accommodation under the ADA.

Of course, employers may choose to implement policies that provide for more leave than federal law requires. In addition, some states have passed family leave laws that are more expansive than federal ones. It’s important to know your company- and state-wide policies, especially when they differ from national leave policies, so you will be prepared to address any employee questions on pregnancy leave.

To learn more about pregnancy leave laws, visit the other blogs in our series, EEOC Cracks Down on Pregnancy Discrimination, Leave Only a Mother Could Love: The Care of Pregnancy and Parental Leave, and Addressing Employer Confusion With Pregnancy Related Laws: What to Expect When Your Employees Are Expecting.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.


Kristin Fisher

by Kristin Fisher


Author Bio: As a compliance attorney for Paycom, Kristin Fisher monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Fisher earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her fiancé.

California

How Employers Can Look to California as a Trendsetter

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It seems that every year, California imposes another piece of legislation upon employers that hasn’t even been considered in any other state, let alone passed, and many California cities have their own set of complex ordinances. However, instead of thinking as California as an island or an anomaly, savvy business professionals should take a moment to consider how such laws would affect your company, even if you don’t yet have any employees in California. Why? History has shown that California is a trendsetter.

Be sure to subscribe to the HR Break Room to learn more on past, present and future California Laws and how they may soon affect your company.

Medical Marijuana

In 1996, the first time in history, marijuana was approved for medical use at the state level when California voters passed Proposition 215. Twenty-two years later, 30 states, the District of Columbia, Puerto Rico and Guam approve the use of medical marijuana in some form or fashion. And the other states?  Kentucky, Missouri, Oklahoma, South Dakota and Utah are all poised to consider medical marijuana legalization later this year.

Medical marijuana legislation may not be considered employment law traditionally, but there are a multitude of employment implications.

Questions for employers:

  • How should you craft company policy balancing an employees’ legal right to medically use marijuana with the interest of maintaining a safe work environment?
  • When can you fire an employee for marijuana use?
  • How are your organization’s mandatory drug tests affected?
  • What should your HR department do when an employee protected under the Americans with Disabilities Act requests a medical marijuana accommodation?

 

Local Minimum Wages

San Francisco was one of the first two cities to pass a local minimum wage in 2003, along with Santa Fe, New Mexico. Nine years later, California and New Mexico began the local minimum wage movement in earnest with the passage of minimum wages in San Jose and Albuquerque. Currently, 22 different California cities or counties have their own minimum wage regulations.

Questions for Employers:

  • How are you going to react if a local minimum wage is passed in a city where you have employees?
  • Does your HR team watch for such ordinances and have the flexibility to raise employees’ pay in order to remain compliant?
  • Are you flexible enough to pay an employee different minimum wages when he or she works in multiple localities with such ordinances in the same pay period?

 

Paid Sick Leave

San Francisco, again, spearheaded expanded worker protections in 2006 when it passed the first paid sick leave law in the nation. Additionally, it is currently the furthest reaching of such laws, providing protections for any worker—part time, temporary, or full time—who works within the city for an employer. Since then, 29 other California cities or counties have enacted paid sick leave laws, as well as eight states and Washington, D.C.

Question for Employers:

  • Can you ensure your accrual system separately tracks required paid sick leave for employees in all municipalities and states you operate and if your employees work or travel to those localities in question?

 

What’s Ahead: Predictive Scheduling and Equal Pay Laws

What additional California trends should employers keep an eye on?

First, consider predictive scheduling laws, which require employers to abide by certain scheduling procedures and penalize those that do not. To the surprise of no one, San Francisco was the first locality to pass such a predictive scheduling law in 2014. Following suit, Emeryville, CA, Seattle and New York City passed predictive scheduling laws that went into effect last year. Oregon was the first to enact state-wide legislation. While it is early in the predictive scheduling law movement, many other states and municipalities, even the United States Congress, have introduced predictive scheduling legislation.  Your state or city could be next.

And finally, equal pay laws. Sure, the federal Equal Pay Act and Title VII of the Civil Rights Act has been around since the 1960s and states have had some protections for years, but the movement of further expanding and enforcing the prohibition of pay disparity has recently increased and has two distinct iterations:

  1. Creating general prohibitions against pay disparity and mechanisms to enforce those prohibitions.
  2. Inhibiting employers making pay decisions on salary history.

 

In 2015, the California Fair Pay Act, touted by The Los Angeles Times as “[maybe] the nation’s most aggressive attempt yet to close the salary gap between men and women” was signed into law. Right on the heels of California, New York expanded equal pay protections with the 2015 passage of a group of bills in known as the Women’s Equality Agenda.

In 2016, the California Fair Pay Act was amended to also prohibit pay gaps on the basis of race and ethnicity, not just sex, and prohibits employers from justifying disparities solely on the basis of prior salary. 2016 also brought equal pay law amendments in Nebraska and Massachusetts and another state pay equity laws in Maryland. Oregon and Puerto Rico followed suit in 2017. Massachusetts became the first to pass a law restricting employers from inquiring about salary history in 2016.  California, Oregon, Delaware, Puerto Rico, New York City, San Francisco and Philadelphia followed in 2017.

The U.S. Equal Employment Opportunity Commission proposed in 2016 to collect a summary of pay data by race, ethnicity and sex from employers in addition to the current EEO-1 report. This data would allow the EEOC to more effectively tackle pay disparity. This data collection was put on hold, though, in August 2017 before it went into effect. At the same time, California was considering a bill similarly requiring employers to collect data on gender wage differentials. This bill was passed by the legislature in September following the announcement that the EEOC was putting a hold on its efforts. However, the bill was eventually vetoed by the governor. This type of law is likely to make another showing in California, and most certainly other states as well.

As you can see, California has started many employment law movements (and these were just a few). Click here, here and here to see a few recent laws that may be impacting your city or state in the near future.

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Posted in Blog, California, Compliance, Featured

Alyssa Looney

by Alyssa Looney


Author Bio: As a compliance attorney for Paycom, Alyssa Looney monitors laws, rules and regulations to ensure that the Paycom software is up to date, specifically regarding immigration law and state law developments in the Western United States. She holds a JD and an MBA from Pennsylvania State University, as well as a bachelor’s degree from Texas A&M University. Outside of work, Alyssa enjoys cooking, being active, playing with her puppy and exploring Oklahoma City.

Death of an employee

Staying Compliant After the Death of an Employee

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When an employee passes away, you need time to process your emotions. But as an HR professional, there are also timely actions you should take to help your workforce grieve, and a few things you’ll need to address to remain compliant. While the death of an employee is never easy, it’s important to ensure any compliance matters are handled consistently with your current policies but with added grace.

Initial Steps

Although your employee wasn’t actually terminated, it’s still a best practice to follow your existing termination checklist. The checklist will help you determine what security access the deceased had so you can disable or redirect it. It will also help with remembering what keys and technology (like a laptop or cellphone) the employee may have had. Be respectful of the employee’s family and ask for these items in as sensitive a manner as you can. You may work with your internal IT department to secure devices remotely, which can protect your sensitive data while you work to connect with the right family member.

In some instances, you’ll also need to obtain a death certificate from the family. This may seem like a uncomfortable request, but you’ll need the certificate before you can proceed with many of the following steps you need to take for the employee.

Paycheck

Check your state laws to make sure you’re following the correct procedure about paying final wages. For example, some states require you to pay out unused vacation. If your state doesn’t have a law, follow your company policy.

You’ll also need to find out who the deceased’s beneficiary is so you will know who should receive his or her final wages. This should be documented either in your HRIS system or on a form in the employee’s personnel or benefit file.  If a paycheck has already been issued, but not cashed, you should reissue the check to the deceased’s beneficiary or estate.

COBRA and Life Insurance

If the employee is covered on the benefit plans, their death is a COBRA-qualifying event. If you sponsor group health plans, you must offer a continuation of group health insurance for up to 36 months to the deceased’s surviving spouse and dependents. The family must be notified about coverage within 30 days of the deceased’s death.

Prepare any relevant information for life insurance claims, if the employee had a policy in effect. They will be dealing with so many decisions that pulling this information together for them before they request it can help give those grieving one less thing to worry about. Employers may also choose to include EAP information or other company sponsored grief resources for eligible family members.

Employee Retirement Income Security Act (ERISA)

The Employee Retirement Income Security Act of 1974 requires that retirement, pension and other plans provide survivor benefits to the surviving spouse of an employee who worked after reaching the earliest possible retirement date under the plan but passed away before retiring. Since this law only pertains to employees who were able to retire but hadn’t yet, you’ll need to refer to your company’s policies to ensure compliance if the deceased was of retirement age. Benefit administrators should contact their plan providers to confirm if there is any additional action required on the deceased employee’s behalf.

To learn more about how your business can start to build procedures for an employee’s death so you can navigate the difficult time as smoothly as possible, visit our blog, “4 Questions to Consider When Handling the Death of an Employee.”

 

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Posted in Blog, Compliance, Employment Law, Featured

Callie Johnson

by Callie Johnson


Author Bio: As a writer for Paycom, Callie Johnson creates content for the company’s various marketing and communications initiatives. Having earned her bachelor’s degrees in journalism from the University of Oklahoma and web design/development from Full Sail University, she has written for companies of all sizes. Outside of the office, she enjoys hand-lettering, going to the movies and spending time with her family and dogs.

Office Relationships

How HR Could Have Helped 3 Complicated On-screen Office Relationships

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With Valentine’s Day right around the corner, love is in the air and sometimes that romantic air makes its way into the office. Workplace romances may seem like something only seen in film or on TV, but according to Career Builder, 38% of American workers said they have dated a co-worker at least once in their career. That’s over a third of employees, which makes workplace romance an item every organization should have on its radar.

To better understand how HR can prepare and handle potentially tricky conversations, let’s take a look at three complicated workplace romances from film or television – and how HR could have helped.

Subscribe to HR Break Room to hear more about managing office romance.

Mulder and Scully – The X-files

For almost 25 years, special agents Mulder (David Duchovny) and Scully (Gillian Anderson) from The X-Files have been solving supernatural and extraterrestrial cases on television. This pair of government agents work for one of the most well-known organizations in the country, the Federal Bureau of Investigation (FBI). Throughout the series, they slowly become more than just friends or coworkers and have even become romantically involved in the most recent seasons. Each episode features a case that often involves aliens, weird occurrences … and yet another development in Mulder and Scully’s evolving relationship.

How HR can help: The on-again, off-again relationship between Mulder and Scully has left audiences wondering about their status for years. That ambiguity is what makes their relationship unhealthy for the workplace. It’s important for an organization’s policy to hold employees accountable for reporting a romantic relationship with a co-worker. This transparency allows HR to hold a consistent policy that can protect both employees if they break up.

Tom and Summer – 500 Days of Summer

The greeting card industry can be tough, but a brutal breakup in the office can make it even harder! Just ask Tom Hansen (Joseph Gordon Levitt) and Summer Finn (Zooey Deschanel) from the 2009 hit romance film, 500 Days of Summer. The romance that sparked between this on-screen couple turned out to be a bad fit that eventually led to Tom’s depression and complete disengagement from his work. It’s a classic example of how even the most beautiful romances can sometimes go sour.

 How HR can help: It’s important for HR to treat their employees like adults who are allowed to make their own mistakes. It is equally important for managers and supervisors to know about office romances so they can be prepared to handle potential drama.

In this film, Summer is the personal secretary of Tom’s manager, Vance. As the long and painful breakup unfolds, Vance is not clued in on the reason behind Tom’s disengagement, which leads to awkward workplace encounters and poor productivity. By incorporating some form of documentation confirming a workplace relationship into your organization’s policy for managers and team leads, you can foster a culture that equips leaders to better address the impact of those painful breakups.

Lois and Clark – Superman

The iconic comic book couple Lois and Clark have appeared on the screen together many times over the last several decades, but let’s take a look at the 1975 film Superman starring Christopher Reeve and Margot Kidder. Pulitzer Prize-winning reporter Lois Lane works closely with Clark Kent, who (unbeknownst to her) lives a life of fighting criminals. In the workplace, they are coworkers with great chemistry, but Lois’ professional-turned-romantic relationship with Clark’s alter ego, Superman, eventually makes her and the entire Daily Planet a target of his rivals. Clark’s dual identities complicate the root of the problem within the workplace, so that his interest in Lois puts the entire organization at risk.

How HR can help: Krypton’s last son may be great at hiding his identity, but ultimately living a life of two identities endangers people in both. That includes his coworkers Jimmy Olson, Perry White and most importantly, his romantic interest, Lois Lane.

It’s up to The Daily Planet’s HR department to screen their candidates through an applicant tracking system with thorough background checks before making a hiring decision. This can help identify potential red flags or conflicts of interest before a new employee joins the team.

 This Valentine’s Day, take the opportunity to look closer at your existing workplace romantic relationship policies. These stories make for great entertainment – but an effective policy on workplace romance can help you make sure the drama stays on the screen and out of your office.

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Posted in Blog, Featured, Talent Management

caleb.masters

by Caleb Masters


Author Bio: Caleb is the host of The HR Break Room and a Webinar and Podcast Producer at Paycom. With more than 5 years of experience as a published online writer and content producer, Caleb has produced dozens of podcasts and videos for multiple industries both local and online. Caleb continues to assist organizations creatively communicate their ideas and messages through researched talks, blog posts and new media. Outside of work, Caleb enjoys running, discussing movies and trying new local restaurants.

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