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Addressing Employer Confusion With Pregnancy Related Laws: What to Expect When Your Employees Are Expecting

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The best way to prevent pregnancy discrimination is to understand the laws which can be implicated.  Such laws include the Family and Medical Leave Act, Pregnancy Discrimination Act, the Americans with Disabilities Act Amendments Act and the Affordable Care Act. Unfortunately, understanding the intricacies of each of these laws can be difficult and confusing, so let’s review each in an effort to provide clarity.

1. Family and Medical Leave Act (FMLA)

Not all employers are required to provide FMLA benefits, and not all employees will be entitled to such benefits.

  • Only “covered employers” must provide FMLA benefits. A “covered employer” may be private-sector employers with 50 or more employees, public agencies and public or private elementary or secondary schools.
  • Eligible employees are those who have worked for the employer, for at least 12 months and for at least 1,250 hours in the past 12 months.

Employees are entitled to FMLA leave for the birth of a son or daughter and also for serious health conditions that make the employee unable to perform the essential functions of his or her job.

  • This includes leave for the birth of a child, prenatal care, incapacity related to pregnancy (such as morning sickness) and any serious health conditions that the mother might have following childbirth.

When an employee takes FMLA leave, the employer must maintain the employee’s health benefits.

When an employee returns from FMLA leave, the employer generally is required to restore the employee to the same job that was held when the leave began, or to an equivalent job.

FMLA regulations allow employers to run paid leave concurrently with FMLA leave.

  • This means that employers can require employees to substitute accrued paid leave for unpaid FMLA leave. This, however, will not increase the total amount of leave allowed.
  • This also applies to short-term disability benefits.

The amount of leave allowed under FMLA does not have to be used all at once and can be used during pregnancy, after birth or spread across both time periods.

  • An employee may take leave by reducing normal daily or weekly hours.

Employers must provide notice of FMLA eligibility either orally or in writing within five days of the employee’s request for leave or when the employer becomes aware that the employee’s leave may be for FMLA-qualifying reasons.

Some states may have broader maternity-leave laws that override the FMLA. These state laws will be discussed in a later post.

2. Pregnancy Discrimination Act (PDA)

The PDA states that discrimination based on pregnancy, childbirth or related medical conditions will constitute unlawful sex discrimination under Title VII of the Civil Rights Act.

The PDA does not require employers to provide any leave to pregnant workers, except to the extent the employer provides leave to other individuals suffering from temporary disabilities.

Lactation is a pregnancy-related condition protected under the PDA and denial of an appropriate location to express breast milk could amount to pregnancy discrimination.

The PDA has been interpreted as not requiring reasonable accommodations to pregnant women, unless the employer also provides such accommodation to nonpregnant employees with temporary conditions (accommodations may, however, be required under the American’s with Disabilities Act Amendments Act.

3. American’s with Disabilities Act Amendments Act (ADAAA)

The ADAAA applies to employers with 15 or more employees, and does not set any minimum service requirements for employees to qualify and the ADAAA is implicated only when a person is discriminated against because he or she is disabled.

  • A “disability” is a physical or mental impairment which substantially limits a major life activity. This can include short-term impairments, which are substantially limiting.

A normal pregnancy will not constitute a disability, but pregnancy-related medical conditions may rise to the level of a disability under the ADAAA. (See our previous post, “EEOC Cracks Down on Pregnancy Discrimination,” for examples of pregnancy-related medical conditions that have been considered a disability.)

A pregnant employee may be entitled to an accommodation under the ADAAA for pregnancy-related medical conditions. This may include things such as altered break and work schedules, or elimination of marginal job functions.

  • Employers may not reduce the employee’s pay because she needs an accommodation to do her regular job.

There is no specific time limit on the amount of leave that may be taken by the employee or the length of accommodations if no undue hardship exists for the employer. The length of an accommodation or the period of time off must only be reasonable.

  • Courts have held that anywhere from six months to a year can be considered a reasonable period of time off from work.

Employers will not be required to hold the employee’s job open while the disabled employee is on leave, if doing so would create a hardship for the employer.

4. Affordable Care Act (ACA)

Generally, the ACA requires employers with at least 50 full-time employees to offer employees minimum essential health coverage that is affordable, or to make an employer shared-responsibility payment to the IRS. Please note that employers will face hefty fines for not providing coverage that meets the minimum requirements.

Employees cannot be denied health coverage or charged more because they are pregnant. This applies whether employees get their insurance through their employer or if they buy it on their own.

The ACA explicitly identifies pregnancy, maternity and newborn care as part of the essential benefits package that must be offered by plans.

  • Most plans must cover preventative services for pregnant women or women who may become pregnant, without charging a copayment or coinsurance.
    • This includes things such as anemia screening, gestational diabetes screening or folic acid supplements.
  • Employers’ health insurance plans also must provide breastfeeding support and counseling, and equipment for the duration of breastfeeding.

The ACA also requires that employers provide time and space for new mothers to express breast milk until the child turns 1 year old.

  • This provision overlaps with the PDA, which requires employees to be compensated for time that is used to pump or breastfeed if other employees are compensated for their break times.

 

Conclusion

Many laws are implicated when it comes to pregnant employees and most charges of pregnancy discrimination today result from seemingly neutral policies that adversely impact pregnant workers. It is important to understand that:

  • pregnancy discrimination can happen in all aspects of employment
  • some pregnant employees may be entitled to certain accommodations or specified leave
  • an employer’s policies pertaining to nonpregnant employees can impact how pregnant employees are treated
  • all pregnant employees may not be treated in the same manner

 

These laws, while all very different, overlap in many areas, and understanding the various parts of each is vital for employers.

For more about the EEOC’s current focus on pregnancy-related limitations and to address potential confusion with pregnancy related laws, be sure to read EEOC Cracks Down on Pregnancy Discrimination and for more details about terms associated with leave taken for pregnancy or childbirth-related purposes, check out “Leave Only a Mother Could Love: The Care of Pregnancy and Parental Leave.

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 Birchell

by Kristin Birchell


Author Bio: As a compliance attorney for Paycom, Kristin Birchell 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. Birchell 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 husband.

ACA ‘Cadillac Tax’ Delayed to 2022

ACA ‘Cadillac Tax’ Delayed to 2022

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The short-term spending bill that ended the government shutdown on Jan. 22 included a small provision that again delayed the Affordable Care Act’s (ACA) “Cadillac tax,” now to 2022.

So nicknamed because it targets employer-sponsored health plans with the most generous level of benefits, the Cadillac tax originally was to take effect in 2018. In 2015, the effective date was pushed to 2020, and now the new bill pushes the effective date two additional years into the future.

When – or if – the Cadillac tax goes into effect, it will impose a 40% excise on the cost of employer-sponsored health coverage exceeding a certain dollar value per employee. The dollar value would have been $10,200 for individual coverage and $27,500 for family coverage in 2018, had the tax not been delayed. The law calls for the amount to be adjusted annually with growth in the consumer price index.

How does this affect Employers?

Employers do not have to contend with the tax for an additional two years. The IRS has not yet issued regulations addressing implementation; with this additional delay, the agency likely will not do so in the near future.

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.

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Posted in ACA, Blog, Compliance, Featured

Erin Maxwell

by Erin Maxwell


Author Bio: As a compliance attorney for Paycom, Erin Maxwell monitors legal and regulatory changes at the state and federal level, focusing on health and employee benefits laws, to ensure the Paycom system is updated accordingly. She previously served as assistant general counsel at Asset Servicing Group in Oklahoma City. She holds a bachelor’s degree from the University of Central Oklahoma and a J.D. from the University of Oklahoma. Outside of work, Maxwell enjoys politics, historical mysteries and spending time with her family.

Deadline Extended

Employer Deadline Extended for Furnishing 2017 ACA Forms

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Distribution of 2017 Affordable Care Act (ACA) Forms 1095-B or -C to your employees has been extended.

As issued in Notice 2018-06, the IRS has extended the deadline from Jan. 31 to March 2. (However, the deadline to provide Forms W-2 and 1099 to employees and contract workers remains as Jan. 31.)

Filing deadlines unchanged

While the deadline to furnish forms was extended, the filing deadlines remain the same: Feb. 28 for paper forms, and April 2 for electronic forms.

IRS Notice 2018-06 emphasizes that employers who do not comply with the due dates for furnishing or filing are subject to penalties under sections 6722 or 6721.

Good-faith transition relief extended

The IRS also announced the extension of good-faith transition relief. This may allow an employer to avoid some penalties if it can show that it made good-faith efforts to comply with the information reporting requirements for 2017.

This relief applies only to incorrect and incomplete information reported on the ACA forms, and not to a failure to file or furnish the forms in a timely manner. Additionally, the IRS stated it does not anticipate extending either the good-faith transition relief or the furnishing deadline in future years.

Contact a trusted tax professional if you have questions on how this may affect your business specifically.

Click here to read more about how the ACA is affect by the new Tax Cuts and Jobs Act.

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.

Tags: , , , ,
Posted in ACA, Blog, Compliance, Featured

Erin Maxwell

by Erin Maxwell


Author Bio: As a compliance attorney for Paycom, Erin Maxwell monitors legal and regulatory changes at the state and federal level, focusing on health and employee benefits laws, to ensure the Paycom system is updated accordingly. She previously served as assistant general counsel at Asset Servicing Group in Oklahoma City. She holds a bachelor’s degree from the University of Central Oklahoma and a J.D. from the University of Oklahoma. Outside of work, Maxwell enjoys politics, historical mysteries and spending time with her family.

Employers Unaffected by ACA Changes in New Tax Law

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On December 22, President Trump signed the Tax Cuts and Jobs Act. The bill includes a provision that reduces the penalty for not complying with the Affordable Care Act’s (ACA) individual mandate to $0, effectively removing the penalty for individuals who do not have health insurance coverage after the effective date of Jan. 1, 2019.

However, this update will not impact employers, since the law does not remove the employer mandate (the requirement that large employers offer health insurance coverage to their full-time employees or pay a penalty) or the associated employer reporting requirements. Large employers subject to the mandate still face penalties if they fail to comply with either, and the IRS has begun sending out notices with preliminary assessments of the employer shared responsibility penalty for tax year 2015.

Employers subject to the employer mandate should continue to comply and be prepared to file Forms 1094 and 1095 with the IRS in accordance with the normal deadlines.

For the 2017 tax year, the deadlines to provide Forms 1095-C to employees is Jan. 31, 2018.  The deadline to file Forms 1094-C and 1095-C with the IRS is Feb. 28, 2018 if filing paper forms, and April 2, 2018, if filing electronically.

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.

Posted in ACA, Blog, Compliance, Featured

Erin Maxwell

by Erin Maxwell


Author Bio: As a compliance attorney for Paycom, Erin Maxwell monitors legal and regulatory changes at the state and federal level, focusing on health and employee benefits laws, to ensure the Paycom system is updated accordingly. She previously served as assistant general counsel at Asset Servicing Group in Oklahoma City. She holds a bachelor’s degree from the University of Central Oklahoma and a J.D. from the University of Oklahoma. Outside of work, Maxwell enjoys politics, historical mysteries and spending time with her family.

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