• Medical Leave Due To Pregnancy
  • July 26, 2012 | Author: E. Andrew Keeney
  • Law Firm: Kaufman & Canoles A Professional Corporation - Norfolk Office
  • What if your credit union is not subject to the federal Family and Medical Leave Act (FMLA)? How should you handle requests for time off for “maternity leave?”

    The short answer is that an employee who is out on medical leave due to pregnancy must be treated just like any other employee who is on medical leave due to any temporarily disabling medical condition. In general, an employer must offer the same benefits to employees temporarily disabled by pregnancy as to employees who are temporarily disabled by any other medical condition. So when considering requests for medical leave due to pregnancy, you must consistently apply the same policies that you would follow for any request for medical leave due to any temporary disability. “Maternity leave” should be coordinated with the employer’s paid and unpaid leave policies just like any medical leave for any temporary medical condition.

    This same principle -- treating all employees on medical leave for temporary medical conditions, including pregnancy consistently -- applies to other benefits which may be provided while on leave. This may include provision of health care coverage; sick leave, vacation and PTO accruals; pay increases; etc. Job reinstatement and/or consideration for vacant positions should be handled in the same consistent manner.

    Employers may ask employees if they intend to return to work following medical leave due to pregnancy, as long as all employees going out on medical leave for any reason are asked the same question. The employee’s answer should be documented. If an employee affirmatively acknowledges that she will not be returning from medical leave, written confirmation can be requested and employment may be considered to end through resignation when the employee departs for medical leave.

    "Maternity leave" should also be coordinated with your short term disability (STD) insurance policy. Depending on how your credit union’s STD plan is structured, you may be able to require employees to re-pay STD benefits if they do not return to work following STD leave for reasons other than ongoing disability. This policy would need to apply to all employees going on STD leave for any medical reason, not just the employees going on leave due to pregnancy.

    If your credit union maintains group health care coverage for employees who are out on temporary medical leave, you can also consider a policy which requires employees to reimburse the credit union for premiums in the event the employee does not return to work following leave for reasons other than ongoing disability.

    Two caveats: (1) Even if your credit union is not subject to the federal FMLA, you must consider whether a state FMLA or similar law applies. At least ten states and the District of Columbia currently have such laws in effect. These state laws may require covered employers to provide protected leave and reinstatement rights, as well as provide certain notices, to eligible employees. (2) Consider avoiding the term “maternity leave,” and use the more appropriate designation of “medical leave.” If your credit union is providing “maternity leaves” which are longer than leaves for temporary medical purposes, you may be opening the door to a “paternity leave” requirement as well.