We’ve all been hearing a lot about Yahoo’s Marissa Mayer lately – and not just because, at 37 years old, she is the youngest CEO of a Fortune 500 company. Instead, much of the buzz is related to the revelation that she is expecting her first child this fall and her intent to work throughout her few weeks of maternity leave. Some have lauded Mayer’s commitment to her new job. Others have decried her naiveté about the demands that a new baby will place on her. We wanted to take a moment to comment on the employment law aspects raised by this discussion.
Although a pregnant employee who promises to minimize her leave and continue working during her leave may sound like an employer’s dream, it’s important to realize that Mayer’s situation is far from typical. She is the CEO and, as a result, has both the financial means and schedule flexibility necessary to oversee the development of both her company and her baby. That is not the case for the vast majority of working mothers.
The law, therefore, offers certain protections to pregnant employees. First and foremost, employers may not discriminate against employees due to pregnancy. While pregnant employees are not entitled to preferential treatment, they also may not be penalized in terms of pay, leave availability, promotions, and other terms and conditions of employment.
One area where employers frequently make mistakes relates to the application of employer leave policies. In Ohio, employers must equally apply leave policies to both pregnant and non-pregnant employees. Therefore, if a non-pregnant employee is not eligible for leave until after 12 months of employment, the employer may apply that same policy to pregnant employees – even if it results in the pregnant employee’s termination from employment. Pregnant employees may not, however, be treated less favorably than non-pregnant employees when it comes to leave availability.
Generally speaking, pregnant employees who are eligible for leave under the Family and Medical Leave Act may take up to 12 weeks of leave for the birth of a child as well as for pregnancy-related medical conditions and treatment leading up to the birth of the child. Many employers, however, count time off for maternity leave toward short-term disability leave but neglect to also count that time off as leave under the FMLA – a mistake that could lead to an employee exhausting short-term disability during maternity leave and still having up to 12 weeks of leave available under the FMLA should another FMLA qualifying event occur. Concurrent management of short-term disability and FMLA leave can allow employers to have a more stable workforce with fewer periods of long absence.
Another area where employers run into trouble is with asking or permitting employees to work during their leave. For employees on FMLA leave, constant interruptions and requests for an employee to help out with “just this one thing” could give rise to a claim for FMLA interference. Non-exempt employees under the Fair Labor Standards Act who are required or allowed to perform work while on leave must be paid for all such hours worked – something that can be difficult to track during a leave situation. As a result, the smartest approach for employers is to have a plan for covering employee maternity leave that does not require constant interruption of the employee’s leave.
It remains to be seen how Mayer’s maternity leave will actually unfold. In any event, employers should recognize that the old rules still apply no matter how much coverage Mayer’s pregnancy generates.