Law Office of Alan Kansas, LLC

When And How Do I Tell My Employer That I Am Pregnant?


To answer these questions correctly, you really need to consider the issues covered in the prenatal employment law checkup – mainly what laws apply to your employer and how are you protected under those laws? In general, if you are legally protected, then you are going to want to make an early declaration to your employer that you are pregnant and intend to take FMLA leave. A lot of people assume it is safer to wait to tell their employer about pregnancy and the upcoming need for FMLA leave. While there are some situations where other considerations make it wiser to wait, that is often the wrong move. Telling the employer about the pregnancy is like activating the legal protections. Covered employers cannot discriminate against an employee because of pregnancy or because the employee intends to use FMLA leave. However, an employer that does not know the employee is pregnant or intends to use FMLA leave cannot be guilty of discriminating on that basis. Sometimes, the employer can tell or may just suspect that a leave request is coming before the employee announces it to them. Sometimes, the employer learns about these things through office gossip. If the employer acts against the pregnant employee before the employee can prove that it knew about the pregnancy, then it is as if the legal protections were never activated.

For this reason, I suggest that employees provide written notice (email works great) so that there is no question about whether the employer knew the employee were pregnant. (Keep a copy for your personal records.)

What Are Some of The Common Issues I should Look Out For?

One problem that I see repeatedly is people assuming that an employer is covered by the FMLA and that the employee is entitled to FMLA leave. Many employers have FMLA leave policies that appear to apply to employees who are not actually protected under the statute. This is unfair to the employee, but the courts have generally been unwilling to grant any relief to the impacted employees. This is something we can identify and plan for dealing with in the prenatal employment law checkup.

Another problem happens when people think, “Well, I have 12 weeks of leave to care for my newborn,” without subtracting out any other leave time taken in the relevant 12-month period. The reality is that you have 12 weeks of FMLA leave a year (and there are different ways to determine when the 12 months begins and ends). Many times, pregnant women will have to take some medical leave or temporary disability leave during pregnancy. What people often don’t realize is that most of the time that leave is going to count against that 12-week total. So, if you end up on bed rest for three months of pregnancy, you are probably going to be out of FMLA leave after that.

Another common mistake is an employee assuming that they can use vacation or PTO and then FMLA (or vice versa). An employee who has three weeks of vacation or PTO in the bank might plan to use 12 weeks of FMLA leave and then use the PTO for a total of 15 total weeks off. However, most employers require that employees use up available vacation or PTO during FMLA leave. If that’s the case, the employee may get paid for some of FMLA leave because it runs concurrently with their available PTO. But they will end up with less time off than they expected.

These are some of the common issues employees need to consider beforehand to maintain maximum legal protection and flexibility in balancing work and family obligations.

What Kinds Of Rights Do Fathers Have In The Workplace?

Fathers are also protected by the FMLA. While they do not need leave for pregnancy themselves, they may use leave to care for a partner who is pregnant, disabled and needs to be taken to checkups or the hospital. They are also entitled to FMLA leave to care for their newborns and newly adopted children. Whether or not they take that leave is up to them, but they are entitled to it under the right circumstances, and an employer cannot retaliate against them for using that leave.

There is also an evolving issue where employers are providing paid maternity leave or paid newborn care leave. The courts are saying, “If you are going to provide paid leave for a woman with a newborn baby but not for a man, then you are discriminating against your male employee.” So, in those cases the men may also be entitled to paid time off to care for their newborn or newly adopted children.

Insurance Issues Accompanying Pregnancy

FMLA cases sometimes create questions about insurance coverage. Employees should be aware that employers can make employees on unpaid FMLA leave pay the employee’s share of the insurance premium for time spent on FMLA leave.

Also, when an employee does not return to work after FMLA leave, the employer can recoup its share of insurance premiums paid during the FMLA leave – unless the failure to return to work is due to a serious health condition or other circumstance beyond the employee’s control.

Some women chose not to return to the workplace after child birth. In those cases, the employer can charge for the cost of the coverage that it paid for during leave. Thus, it may be wiser for an employee to return to work and resign later. That is just one of a variety of issues that can come up in these situations.

For more information on Informing Your Employer About Your Pregnancy, or to set up an appointment, call (504) 313-4080 today.

Alan Kansas, Esq.

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