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While You’re Pregnant

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. U.S., New York, and local laws can help you stay healthy at work, give you time off when you need it, and protect you from pregnancy discrimination.

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. That means:
    • Your boss can’t fire you or cut your hours when she finds out that you’re 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. 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 New York State Human Rights Law also bans pregnancy discrimination, and covers workplaces with 4 or more employees. In New York, the law clearly says your boss cannot force you to leave work during your pregnancy, unless your pregnancy actually prevents you from doing your job.

Workplace Accommodations

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.

Talk with your boss about your bump
  • New York’s pregnant workers fairness act went into effect on January 19, 2016. If you need a “reasonable accommodation” because of your pregnancy or childbirth, and your employer has four or more employees, your employer has to give it to you unless it would be really difficult or expensive (an “undue hardship”). This means:
    • Your boss can’t just fire you if you ask for a chair to sit on or light duty while you are pregnant—she has to give you what you need to stay healthy at work, unless your employer can show that it would seriously harm the business.
    • Examples of accommodations listed in the law include providing new equipment or changes to equipment, changes to your job duties, and changes to your schedule.
    • Other accommodations may be covered by the law as well, such as more frequent breaks for water or getting a chair to sit on.
    • You have a right to have your medical information related to your pregnancy kept confidential by your employer.
  • If you are not covered by New York’s “reasonable accommodations” law (for example, if you work out of state), there is also the Americans with Disabilities Act.  This federal law 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 New York State Human Rights Law also bans disability discrimination at workplaces with 4 or more employees. This law covers many different medical conditions related to pregnancy.
  • New York City has a special law in its Human Rights Law, called the Pregnant Workers Fairness Act, that applies to employers with 4 or more employees.  The law says that if you need a “reasonable accommodation” because of your pregnancy or childbirth, your employer has to give it to you unless it would be really difficult or expensive. This means your boss can’t just fire you if you ask for a bigger uniform, an extra bathroom break, or light duty while you are pregnant—she has to give you what you need to stay healthy at work, unless your employer can show that it would seriously harm the business. Learn more about the law here.
  • If you are covered by the Family and Medical Leave Act, you have the right to take time off during pregnancy without losing your job. See the “Leaving Work for Childbirth and Bonding” section under the next tab for more information.
  • New York City’s Pregnant Worker’s Fairness Act (see above) may give you the right to unpaid time off work as a “reasonable accommodation” if you work in the city.

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.

*In April 2016, New York passed a groundbreaking paid family leave law in the nation.  The law does not go into effect until January 1, 2018.

Leave for Childbirth and Adoption

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.
  • New York employers can’t discriminate against Adoptive Parents (look for “LAB,” “Article 7,” and then “201-C”) in their parental leave policies.  If your employer allows workers to take leave after the birth of a child, they must allow you to take the same amount of leave on the same terms after you adopt your child.
  • 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 gives most workers 2 weeks off for surgery but only 1 week for childbirth), this could be illegal under the national Pregnancy Discrimination Act and New York State discrimination laws. Call A Better Balance if you think you are being treated unfairly.

Disability Payments for Pregnancy and Childbirth

  • Birth mothers who work in New York can get some cash benefits while they are unable to work because of pregnancy and childbirth under New York’s Temporary Disability Insurance program. You can learn more here.
    • You can receive TDI for up to 26 weeks in a year or for any particular “period of disability.” Insurers generally consider someone disabled for six weeks after a vaginal delivery and eight weeks after a Caesarian section. There is a one week unpaid waiting period for all TDI benefits, so this benefit may amount to 5 to 7 weeks of coverage, rather than 6 to 8 weeks. In a healthy pregnancy, you may also be considered disabled for a few weeks before your due date if your doctor deems it necessary that you not go to work.
    • These payments are small—only 50% of your average weekly wage, up to a maximum of $170.00 per week.
    • Unlike FMLA, this program does not protect you from being fired while out on leave. That means that if you are not eligible for FMLA, you can lose your job while taking time off and receiving TDI payments.
    • TDI only covers your period of disability, not bonding, so it’s important to start collecting it right after you give birth or you could lose out. If you are planning to use any sick days, vacation days, or other time off after you give birth you should take them after your TDI payments run out. Alternatively, you may be able to collect TDI and paid time off at the same time—check with your employer or union about this.

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.

Returning from Childbirth

  • If you are disabled for a period of time after childbirth, the Americans with Disabilities Act and New York 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, if you work in New York, the pregnant workers fairness act may give you a right to accommodations while you recover from childbirth. The same is true if you work in New York City, under the NYC Pregnant Worker’s Fairness Act.

Nursing Rights

  • You have the right to Express or Pump Milk at Work. If you work in New York,  your employer must give you unpaid break time to express breast milk for up to three years after your baby’s birth. They also must try to provide a private location, other than a bathroom, for you to pump, and cannot discriminate against you for expressing milk at work.
  • Rights for breastfeeding moms are strong in New York, but national laws may also protect you (for example, if you work outside New York):
    • 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 New York law, you have the right to Breastfeed Your Child in any public or private location.
  • The NY state pregnant workers fairness act and the NYC Pregnant Workers’ Fairness Act may also help, if you need a reasonable accommodation to express breast milk while at work.

Caring for Your Family: Family Illness and Caregiver Discrimination

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, 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 this law.
  • If you live in New York City, the New York City Earned Sick Time Act gives you the right to stay home if you or your family member is sick, or needs to visit the doctor, without losing your job.
    • If your employer has 5 or more employees in NYC, you have the right to take up to 40 hours of paid sick time a year, that you can use for your own or a family member’s health needs (like an illness or a check-up).
    • If your employer has fewer than 5 employees in NYC, you still have the right to up to 40 hours of unpaid sick time, meaning that you can’t get fired for needing a day off.
    • Under this law, you earn sick time at the rate of one hour for every 30 hours you work. Call A Better Balance at 212-430-5982 if you have more questions and click here and  click here for more information about the law.
  • In New York State, if you lose your job because you need to take care of a sick or disabled family member, you may still be able to get Unemployment Insurance.
  •  Employment discrimination based on family status is illegal across New York state. Your employer may not fire or otherwise discriminate against you because you are a parent to a child under 18. In addition, Ithaca, Rye Brook, and Westchester County have laws that prohibit employment discrimination based on familial status or parental status.
  • In New York City, the human rights law specifically protects workers from discrimination based on their status as a family caregiver.  For more information about the New York City caregiver discrimination law, which went into effect on May 4, 2016, view our fact sheet here.
  • The Americans with Disabilities Act and the New York City Human Rights Law also ban 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, neither law gives you the right, as the relative of a disabled person, to accommodations such as a schedule change.

Call A Better Balance if you are having problems at work because you are pregnant or parenting

Our free hotline can provide you with information about your rights at work (or refer you to another attorney or legal organization in your area). The information provided here or in response to a Hotline inquiry does not constitute legal advice and does not establish an attorney-client relationship. If ABB chooses to represent you, then a retainer will be signed setting out the scope of the representation.

Call 212-430-5982

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