The Family and Medical Leave Act (FMLA) provides employees with the right to take an unpaid leave for up to twelve weeks following the birth or adoption of a child. However, to be eligible for leave under the FMLA, an employee must have worked for her current employer for a minimum of twelve months. In addition, such leave is only available during the first twelve months following the birth or adoption, not before the baby is born or adopted.
Although the FMLA only applies to employees that have worked for their employer for at least twelve months, there are certain circumstances where a pregnant employee that has worked for less than twelve months may nonetheless be entitled to a leave of absence under the Americans with Disabilities Act (ADA).
The ADA requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities. Although pregnancy is typically not a disability within the meaning of the ADA, severe medical complications resulting from that pregnancy can constitute a disability.
Courts have repeatedly distinguished between a normal, uncomplicated pregnancy and a complication or condition arising out of the pregnancy. Some women experience complications as a result of the pregnancy or exacerbation of already existing impairments such as diabetes, back impairment, high blood pressure, and depression. Courts analyzing whether or not such complications may support an ADA claim have been increasingly receptive to the premise that certain physiological pregnancy consequences, if sufficiently severe, may indeed give rise to a protected disability within the meaning of the ADA.
The Equal Employment Opportunity Commission (EEOC) even stated that an "otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship" on the employer.
Lastly, although the ADA typically requires employees to propose an anticipated return date at the time the employee requests the leave, courts have found that pregnancy-related disabilities are unique. Unlike other illnesses of permanent or indefinite duration, disabilities that are diagnosed as exclusively pregnancy-related could reasonably be expected to subside at the conclusion of the pregnancy.
For employers and employees working in New York City, it's important to remember that the New York State Human Rights Law and New York City Human Rights Law also require that employers make reasonable accommodations to otherwise qualified individuals with disabilities.
All employers should consider having a pregnancy discrimination attorney examine their company's maternity leave policies as well as their general disability leave policies to ensure compliance with Federal, New York State, and New York City laws.
