Many people think that employers can arbitrarily fire employees who become pregnant, on the grounds that they will either miss too much work or are no longer physically able to do their jobs. In some cases, that’s actually true.
However, in others, pregnant women do have legal protection against employment discrimination and unfair termination under both federal law and Florida law.
Pregnancy Discrimination Act
At the federal level, the Pregnancy Discrimination Act (PDA) specifies that your employer can’t discriminate against you in the terms of your employment just because you’re pregnant. For example, if you’re physically able to do your job during your pregnancy, then your employer has to allow you to do so for as long as you are able – even if that’s right up until the moment you head to the hospital. The PDA also requires any pregnancy-related health benefits to be offered to all employees, regardless of their marital status.
However, not all businesses are subject to the requirements of the PDA. The law only applies to companies with 15 or more people – so if you work for a smaller company, you’re not covered by these protections.
Family and Medical Leave Act
You may be more familiar with the Family and Medical Leave Act (FMLA). The FMLA requires companies with more than 50 employees to grant 12 weeks of unpaid medical leave per year. This leave can be used as maternity leave, as well as for certain other medical conditions.
Just like the PDA, the FMLA has a few strings attached. For one thing, there is that size restriction mentioned above – only companies with 50 or more employees are subject to the law’s provisions. Second, you can only take advantage of it if you’ve been at your place of employment for over a year, and have logged at least 1250 working hours over that time. Third, under the FMLA your employer may require you to use accrued leave as part of your medical leave – so if you’ve been saving up your days for a vacation, you might have to give some or all of those back.
Of course, if your employer does require you to use accrued leave for your maternity leave but doesn’t generally require the same thing of employees who are using the FMLA for other reasons, you may have a valid claim of discrimination under the PDA, and you should consider consulting an expert in employment and labor law.
How do I take leave under the FMLA?
There is a process you will have to follow in order to take maternity leave under the FMLA:
- First, be sure to give your employer 30 days written notice before taking leave.
- You must provide proof of medical necessity, and a note from your doctor isn’t going to cut it. Ask your doctor what documentation she generally provides in these situations, and ask your employer what sort of documentation they expect. Your employer is entitled to a second or third medical opinion, but you aren’t responsible for paying for those.
- Stay in touch with your employer regarding your intention to return to work. If you don’t respond to them when they try to check in with you, that may be grounds for termination.
- Sometime during your first two days back at work, inform your employer that you wish to have your maternity leave counted as FMLA leave.
State-level protections from pregnancy discrimination in Florida
Florida law is a bit weaker than federal law when it comes to pregnancy discrimination.
The Florida Civil Rights Act doesn’t specifically cover pregnancy, but it has been used to address claims of pregnancy-related discrimination over the years. Like the PDA, however, it only applies to organizations with more than 15 employees.
In Florida, there is no state law mandating that any employer provide maternity leave at all. Pregnant women can be fired for missing too much work because of their pregnancy, as long as their employer isn’t subject to federal laws like the FMLA. But the employer must then have a similar policy that is applied equally to everyone who misses a certain amount of work, regardless of the reason. If not, then those actions may run afoul of the PDA.
What to do if you think you’ve been discriminated against
If you feel you’ve been discriminated against based on your pregnancy, you do have options available to you. However, they’re neither quick nor simple, and there’s never any guarantee of success.
You will have to file a claim, either with the US Equal Employment Opportunity Commission for federal claims, or the Florida Commission on Human Relations for state-level claims. There is a clock attached to both: you have 180 days from the date on which the discrimination occurred to file a claim with the EEOC, and 365 days to file with the FCHR. You have to do this before you go to court – it’s not an optional step.
After those agencies reach a determination, you can go to court if that’s what you and your attorney feel is the best route. However, there’s a clock running here too – you have to file within 90 days of the EEOC determination (for a claim in federal court), or one year of the FCHR determination for a state court claim.
It’s usually a good idea to seek out employment lawyers for advice and guidance during this process. Wenzel Fenton Cabassa, P.A. has helped thousands of Floridians navigate the tricky and confusing waters of employment law, and we’d be more than happy to speak with you as well.
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