Pregnancy/Pregnancy Loss

Staying healthy at work while you are pregnant is sometimes challenging: you may be dealing with morning sickness, back pain, or doctor’s appointments every few weeks. For women who have suffered a miscarriage, you may need time off for recovery. U.S., Hawaii, and local laws can help you stay healthy at work, give you time off when you need it, and protect you from pregnancy discrimination.

• The Pregnancy Discrimination Act makes it illegal for any employer in the U.S. with 15 or more workers to treat employees unfairly because they are pregnant, trying to get pregnant, or have experienced a pregnancy loss. That means:
  • Your boss can’t fire you or cut your hours when she finds out that you’re pregnant or trying to get pregnant—you have the right to keep working as long as you can still do your job. You also have the right to be free from harassment at work because you are pregnant.
  • You cannot be asked about your pregnancy or plans to have children in a job interview.
  • Your employer can’t treat you differently from other workers just because you are pregnant or have had a miscarriage. The Supreme Court just decided a case where they clarified what this means. The Court said that employers may not put a “significant burden” on pregnant employees. How do you know what’s a significant burden? Start looking around at how your employer treats other non-pregnant employees who have needed an accommodation at work. For example, does your employer have a policy of giving light duty only to those with on-the-job injuries? Or did they have no problem helping out folks with non-pregnancy related disabilities, but sent all the pregnant women out onto unpaid leave? If so, this could be evidence of pregnancy discrimination. Since we are still waiting for further clarification of how this standard works, it’s best to collect all the evidence you can (policies, employee handbooks or manuals, digging around to find out how others have been treated) and to discuss your particular situation with an attorney.
• The Hawaii Employment Practices Act also bans pregnancy discrimination, and covers all workplaces regardless of size. The law states that pregnant women must be treated the same as other, similar individuals.

If you need changes at work to stay healthy on the job, the laws below can help. In addition, click the green button to learn how to talk with your boss about your pregnancy and request an accommodation if you need one.

• Hawaii regulations also say that the employer must make Reasonable Accommodations for women affected by disability because of pregnancy or childbirth. According to the Deputy Executive Director of the Hawaii Civil Rights Commission, even if you have a healthy pregnancy, you have the right to a preventative accommodation—like help with heavy lifting— to keep you healthy on the job. To get an accommodation, you may need to provide a doctor’s note stating your work restrictions. For more information, click here.
• The Americans with Disabilities Act makes it illegal for employers in the U.S. with 15 or more employees to discriminate against disabled workers.  Some pregnancy-related conditions, such as preeclampsia or gestational diabetes, are considered disabilities under the law. This means:
  • Your boss cannot fire you, refuse to give you a promotion, or harass you because you have a pregnancy-related disability.
  • If you have a pregnancy-related disability, your boss cannot refuse to give you small changes at work that you need to stay healthy, like breaks to take medication, temporary relief from heavy lifting, or a stool to sit on during your shift. These changes are called “reasonable accommodations” and are available as long as you can still complete the basic duties of your job with those changes.  Your boss does not have to give you an accommodation that would be very difficult or expensive, like building a whole new office.
  • Although pregnancy, by itself, is not considered a “disability,” some conditions of pregnancy may be disabilities so check with a lawyer to see whether you have a right to an accommodation at work.
• The Hawaii Employment Practices Act also bans disability discrimination at all workplaces regardless of size.
• If you are covered by the Family and Medical Leave Act, you have the right to take time off during pregnancy or after experiencing a miscarriage without losing your job. See the “Leaving Work for Childbirth and Bonding” section under the next tab for more information or see this guide to your workplace rights around miscarriage.
• You have a right to Pregnancy Disability Leave. Hawaii regulations give you the right to take off a reasonable period of time (as defined by your doctor) for disability due to pregnancy and childbirth.

Leaving Work for Childbirth & Bonding

The U.S. is one of the only countries in the world with no law guaranteeing women the right to paid leave for childbirth. However, you may have the right to take unpaid leave for childbirth and return to your job.

The law may protect your job while you are taking leave after childbirth or adoption.

• If you are covered, the Family and Medical Leave Act (FMLA) allows you to take up to 12 weeks of unpaid time off of work per year for a family health emergency or to take care of a new baby— without losing your job (or your health insurance, if you have it).
  • Only about half of all private sector workers in the U.S. are covered by the law! You must 1) work for the government or a company with 50 or more employees within 75 miles of your worksite and 2) have worked with your employer for at least 1 year and 3) have worked at least 1,250 hours in the year before taking leave.
  • If you are covered, you can use the 12 weeks to care for your own health (including pregnancy), to care for a new child after birth, adoption, or foster placement, or to care for a seriously ill family member. Remember that you only get 12 weeks a year in total—if you take time off before you give birth for your own health needs, you’ll have less time afterward to spend with your baby.
  • Before giving birth, you may use your leave an hour or day at a time—such as by taking a day off per week to go to the doctor— rather than all at once. Your employer must approve, however, if you want to use leave time in smaller chunks to bond with your baby.
  • While you are on leave, you have the right to keep your benefits. When you return to work, you have the right to return to the same or a similar job.
  • If you are in the top 10% of highest-paid workers in your company, different rules apply.
• If your boss treats workers who take time off for childbirth differently from workers who take time off for other medical treatments (for example, she requires employees to get a doctor’s note clearing them to work after returning from leave for childbirth, but not leave for surgery), this could be illegal under the national Pregnancy Discrimination Act and Hawaii discrimination laws. Call A Better Balance if you think you are being treated unfairly.
• As mentioned previously, Hawaii regulations give you the right to take off a reasonable period of time (as defined by your doctor) for disability due to pregnancy and childbirth.
• Hawaii has a law that is similar to FMLA, but covers additional workers— the Hawaii Family Leave Law (HFLL).
  • You are covered by this law if 1) you work for an employer with 100 or more employees and 2) you have worked for that employer for at least 6 months in a row. Unlike the FMLA, it does not matter how many hours you have worked for your employer.
  • If you qualify, you are entitled to 4 weeks of family leave during a calendar year.
  • You may use this leave for the birth or adoption of a child or to care for a family member, including a child, spouse, reciprocal beneficiary, sibling, or parent with a serious health condition. A “reciprocal beneficiary” includes people such as a close friend or same-sex partner. You cannot use HFLL leave for your own medical condition.
  • Like the FMLA, this law has many provisions so take a careful look.

Birth mothers who work in Hawaii can get some cash benefits while they are unable to work because of pregnancy and childbirth under Hawaii’s Temporary Disability Insurance program, which covers most workers.

• You can receive TDI benefits for up to 26 weeks per year.
• Not all workers are eligible for TDI—make sure to check out the requirements.
• For more information, click here.

Returning to Work: Recovery, Nursing, and Sick Time

When you return to work as a new parent, you may still need a few extra breaks to pump breastmilk or time off to care for your baby when he’s sick. There are a few laws that can help you get back to work safely and still care for your family.

• If you are disabled for a period of time after childbirth, the Americans with Disabilities Act and Hawaii disability laws, discussed in the “While You’re Pregnant” tab, may apply.
  • If so, you may be able to get an accommodation at work, such as light duty, while you recover.
• Even if you are not disabled, Hawaii pregnancy discrimination law, discussed in the “While You’re Pregnant” tab, may give you a Right to Accommodations while you recover from childbirth.

• If you work in Hawaii, you have the right to Express or Pump Milk at Work. Your employer must allow you to express milk during your regular breaks. They must also give you unpaid break time to express breast milk for up to one year after the child’s birth, and provide a private location that’s not a bathroom for you to pump. The law contains an exception if your employer has fewer than 20 employees and it would be very difficult for your employer to accommodate you.
• Breastfeeding Discrimination is illegal in Hawaii. It is an act of discrimination for an employer to refuse to hire you, or to fire or penalize you, because you breastfeed or express breast milk in the workplace.
• Rights for breastfeeding moms are strong in Hawaii, but national laws may also protect you:
  • The Affordable Care Act (“Obamacare”) gives some U.S. workers the right to take unpaid breaks at work to pump milk, and requires some employers to find a clean, private place that’s not a bathroom for employees to pump milk. This law only applies to workers and employers who are covered by the Fair Labor Standards Act (FLSA)— the law that sets minimum wage and overtime requirements.
• It may be illegal under the Pregnancy Discrimination Act for your boss to punish or discriminate against you because you are lactating.
• Under Hawaii law, you have the right to Breastfeed Your Child in any public location.
• For more information about your nursing rights, click here.

As a new parent, you may face discrimination at work or have problems taking time off when you or your baby is sick. These laws can help you balance your job and caring for your family.

• If you are covered by the FMLA or the HFLL, you have the right to take time off to care for a seriously ill family member. See the “Leaving Work” tab for more information on these laws.
• If your employer provides you with Sick Leave, then you can use up to 10 days of that leave to care for your family, rather than your own health needs.
• In Hawaii you can’t be disqualified from Unemployment Insurance if you quit for a compelling family reason, such as an illness or disability of someone in your immediate family.
• The Americans with Disabilities Act also bans unfair treatment of workers based on their relationship with a disabled person. For example, your boss can’t cut your hours because he thinks you can’t work as hard because you have a child with asthma. However this law does not give relatives of a disabled person the right to accommodations, such as a schedule change, to help them provide care.
• The Hawaii Employment Practices Act also says your employer—or a labor organization or employment agency— cannot discriminate against you because of your association with a disabled person.