The Pregnancy Discrimination Act92 STAT.2076 Public Law 95-555 – October 31, 1978 Public Law 95-999 95th Congress. An Act

Oct. 31, 1978 (S.995) To amend title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. .Pregnancy sex discrimination, prohibition. 42 USC 2000e. Definitions. Be it enacted by the Senate and House of Representatives of the United States of America in congress assembled, That section 701 of the Civil Rights Act of 1964 is amended by adding at the end thereof the following new subsection: “(k) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) 42 USC2000e—2.of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where life of the mother would be endangered if the fetus were carried to term, or except where medical complications preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

~ California Federal Savings & Loan v. Guerra ~

Issue: The legality of California law requiring employers to grant up to four months leave for pregnancy

Company granted leave consistent with its policy, which was 2 months

Employee took more than 2 months leave (consistent with CA policy)

Decision: Title VII, as amended by the Pregnancy Discrimination Act, and California’s pregnancy disability leave stature share a common goal. The purpose of Title VII is “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of employees.” Rather than limiting existing Title VII principles and objectives, the PDA extends them to cover pregnancy.

Congress intended the PDA to be “a floor beneath which pregnancy disability rights may not drop – not a ceiling above which they may not rise.”

COUNTRY DURATION JOB SECURITY

AMOUNT/DURATION RECIPIENT

Canada 17 – 41 weeks Yes 60% / 15 weeks MotherItaly 22 –48 weeks Yes 80% / 22 weeks Mother

Germany 14 – 26 weeks Yes 100% / 14-18 weeks MotherSweden 12 – 52 weeks Yes 90% / 36 weeks Mother or

FatherFinland 35 weeks Yes 100% / 35 weeks Mother or

FatherAustria 18 – 52 weeks Yes 100% / 20 weeks MotherChile 18 weeks Yes 100% / 18 weeks Unspecified

United States

0 0 0 0

MATERNITY AND PARENTAL LEAVE POLICIES:

A COMPARATIVE VIEW (Before the FMLA)

Medical/Leave Benefits: US Comparison with Rest of World

• 75% of the countries, including many so-called developmental countries, and every industrialized country except the United States (before the FMLA) have a period of job-protected maternity leave with some wage replacement. In fact, most have 100% wage replacement.

• Paid maternity leave is a statuary entitlement in 28 European countries

• 96% provide 12-14 weeks paid leave

• 71% provide paid or unpaid leave beyond 14 weeks

• Majority of foreign countries provide disability insurance for non-occupational health reasons

• Before the passage of the FMLA, the United States had no guarantee of job protection for short-term serious health conditions or for newborn/adopted child

Medical Leave:Up to 26 weeks over a 12-month period for an employee who is unable to perform his/her job due to a serious health condition

Family Leave: • Up to 18 weeks over a 2-year period for the birth or adoption of a child, for the care of a seriously ill child, or for the care of a seriously ill parent.• Either the employer or the employee may substitute other paid leave for part of unpaid leave.• If the need for leave is foreseeable, and it is medically feasible to do so, leave must be scheduled as to accommodate the employer.• If the need for leave is foreseeable, the employee shall provide reasonable notice.• Employer may require medical certification.• Employer may request, for informational purposes, that medical certification include the extent of disability.• Employer may require, at own expense, a second medical opinion.

Employment and Benefits Protection:• Employee is to be restored to previous or equivalent position upon return from leave.• Employer must continue health insurance coverage on same basis as prior to leave.• Employee and employer may agree to alternative employment.• An employer must limit an employee’s combined parental and medical leave to 36 weeks over a 1-year period

Original FMLA Bill (S. 249)

Which organizations must provide leave?

SEC. 101. DEFINITIONS

(4) EMPLOYER.— (A) IN GENERAL.--The term "employer"

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii) includes-- (I) any person who acts, directly or indirectly, in the interest of an

employer to any of the employees of such employer; and (II) any successor in interest of an employer; and

Which employees are covered by the FMLA?

SEC. 101. DEFINITIONS

(2) ELIGIBLE EMPLOYEE.–

(A) IN GENERAL.--The term "eligible employee" means an employee who has been employed

(i) for at least 12 months by the employer with respect to whom leave is requested under section 102; and

(ii) for at least 1,250 hours of service with such employer during the previous 12-month period.

Who is considered as a “key” employee?

SEC. 104. EMPLOYMENT AND BENEFITS PROTECTION

(b) EXEMPTION CONCERNING CERTAIN HIGHLY COMPENSATED EMPLOYEES.–

(2) AFFECTED EMPLOYEES.--An eligible employee described in paragraph (1) is a salaried eligible employee who is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.

What reasons can be justified under the FMLA?SEC. 102. LEAVE REQUIREMENT

"(a)(1) Subject to section 6383, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following: [The leave is UNPAID]

"(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.

"(B) Because of the placement of a son or daughter with the employee for adoption or foster care.

"(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

"(D) Because of a serious health condition that makes the employee unable to perform the functions of the employee's position.

What is a serious health condition?

Section 101 (11):The term "serious health condition" means an illness, injury, impairment, or physical or

mental condition that involves

(A) inpatient care in a hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider.

• Incapacity and treatment (a period of incapacity of more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition)

• Pregnancy or prenatal care• A chronic serious health condition• A period of incapacity which is permanent or long-term due to a condition for which

treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal stages of a disease).

• Conditions requiring multiple treatments (e.g., chemotherappy, physical therapy, dialysis)

Who qualifies as a health provider?

SEC. 201. LEAVE REQUIREMENT

"(2) the term 'health care provider' means–

"(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; and

"(B) any other person determined by the Director of the Office of Personnel Management to be capable of providing health care services

What type of job security does an employee have (if any) when they return back to work after taking leave?

SEC. 104. EMPLOYMENT AND BENEFITS PROTECTION

IN GENERAL.--Except as provided in subsection (b), any eligible employee who takes leave under section 102 for the intended purpose of the leave shall be entitled, on return from such leave–

(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

What happens to health care benefits while an employee is on leave?

(2) LOSS OF BENEFITS.--The taking of leave under section 102 shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.

(3) LIMITATIONS.--Nothing in this section shall be construed to entitle any restored employee to--

(A) the accrual of any seniority or employment benefits during any period of leave; or (B) any right, benefit, or position of employment other than any right, benefit, or position

to which the employee would have been entitled had the employee not taken the leave.

SEC. 104. EMPLOYMENT AND BENEFITS PROTECTION

(C) MAINTENANCE OF HEALTH BENEFITS.–

(1) COVERAGE.--Except as provided in paragraph (2), during any period that an eligible employee takes leave under section 102, the employer shall maintain coverage under any "group health plan" (as defined in section 5000(b)(1) of the Internal Revenue Code of 1986) for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave.

You lose seniority

You keep health

insurance

What kind of medical certification is required by the employee (if any) when taking leave? When, and in what

form, must this certification be issued? How much information must be contained in the certification?

(b) SUFFICIENT CERTIFICATION.--Certification provided under subsection (a) shall be sufficient if it states

(1) the date on which the serious health condition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider

regarding the condition;

(4) (A) for purposes of leave under section 102(a)(1)(C), a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse, or parent; and(B) for purposes of leave under section 102(a)(1)(D), a statement that the employee is unable to perform the functions of the position of the employee;

Can an employer question the validity of medical certification?

(a) If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee's health care provider. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification.

(b) (2) An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits. If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies. The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer. See also paragraphs (e) and (f) of this section.

Company cannot bring in

a "ringer"

Continued ---

(b) The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (e.g., a rural area where no more than one or two doctors practice in the relevant specialty in the vicinity).

(c) If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be designated or approved jointly by the employer and the employee. The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider. If the employer does not attempt in good faith to reach agreement, the employer will be bound by the first certification. If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification. For example, an employee who refuses to agree to see a doctor in the specialty in question may be failing to act in good faith. On the other hand, an employer that refuses to agree to any doctor on a list of specialists in the appropriate field provided by the employee and whom the employee has not previously consulted may be failing to act in good faith.

(1) REQUIREMENT OF NOTICE.--In any case in which the necessity for leave under subparagraph (A) or (B) of subsection (a)(1) is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable. (2) DUTIES OF EMPLOYEE.--In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) is foreseeable based on planned medical treatment, the employee-- (A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and (B) shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

What notice is required to take FMLA leave?

CAN LEAVE BE TAKEN INTERMITTENTLY RATHER THAN ALL AT ONCE?

(1) IN GENERAL.--Leave under subparagraph (A) or (B) of subsection (a)(1) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employer of the employee agree otherwise. Subject to paragraph (2), subsection (e)(2), and section 103(b)(5), leave under subparagraph (C) or (D) of subsection (a)(1) may be taken intermittently or on a reduced leave schedule when medically necessary. The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall NOT result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) beyond the amount of leave actually taken.

CAN AN EMPLOYEE BE TRANSFERRED TO AN "ALTERNATIVE POSITION" TO ACCOMMODATE

INTERMITTENT LEAVE?

If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1), that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that–

(A) has equivalent pay and benefits; and (B) better accommodates recurring periods of leave than the regular employment position of the employee.

HOW MUCH LEAVE MAY A HUSBAND AND WIFE TAKE IF THEY ARE EMPLOYED BY THE SAME

ORGANIZATION?

In any case in which a husband and wife entitled to leave under subsection (a) are employed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks during any 12-month period

CAN AN EMPLOYEE SUBSTITUTE PAID LEAVE FOR SOME OF THE FMLA LEAVE?