Discrimination on the grounds of pregnancy is a type of sexual discrimination under both Massachusetts law and federal law. An employer cannot fire, demote or apply rules to a pregnant person that are not applied equally to other employees. A worker who is pregnant is allowed 12 weeks unpaid leave for pregnancy with the guarantee of returning to the same job once the leave is complete.
The employer must restore the employee to her previous position – the one held prior to any temporary changes made to accommodate her pregnancy – or to place her in an equal position with the same status, pay, length of service credit and seniority as the previous position. “Hardship” is not an argument an employer can use to avoid this responsibility. This leave is also allowed in addition to earned vacation time and accumulated sick days.
If the employer is in the habit of paying people who go out on medical leave, then the same policy must be applied to someone out on pregnancy leave. It is also discriminatory, and therefore illegal, to involuntarily “sideline” or demote a pregnant employee for becoming pregnant or intending to become pregnant.
To qualify for pregnancy leave, you must have worked for the same company for at least 3 consecutive months and the company must have 15 or more employees.
Family Medical Leave
The Family Medical Leave Act (FMLA) applies to businesses employing a minimum of 50 people within a 75 mile radius of where you work. You have to have worked for the same employer for at least 12 months and have worked a minimum of 1250 hours during the year preceding the period of medical leave.
Generally, a person is entitled to unpaid medical leave for a serious health condition that prevents them from performing essential job functions, or to assist a spouse or child, or a parent who has a serious medical condition, or for pregnancy or the adoption of a child.
The Family Medical Leave Act covers the following:
- You have the right to return to your previous job or a similar job after a medical leave. Exceptions are if your job was eliminated for unrelated reasons, or you are one of the highest paid employees and returning you to your job would cause serious economic harm to the employer.
- You cannot be fired for keeping your medical records confidential, but you may be required to provide a medical certificate stating that you were required to be away from work for medical reasons.
- You cannot be retaliated against for exercising your rights under the Family Medical Leave Act.
- The 12 weeks medical leave can be broken into smaller units to allow you to handle things like asthma, diabetes or to care for an ailing family member.
- You are required to give the employer 30 days notice of the leave if that is possible. Emergencies would be an allowed variation to that rule.
- You have the right to have your medical, retirement and other benefits maintained while you are on medical leave, provided you paid your normal portion of the expense.
- There may be some situations where your medical condition constitutes a disability and would then be covered under the federal Americans With Disabilities Act.
Leave for Child Birth and Adoption
If the company you work for has 15 or more employees and you have worked full time for the same employer for at least 3 consecutive months, then you are entitled to eight weeks of unpaid maternity leave. You are required to let your employer know at least 2 weeks before the date you expect to be off from work, and when you expect to return to your job. The same rules apply for adoption.
When you return to work, you are supposed to be allowed to resume your previous job or take on another job with equal pay and equal status. If the employer does not comply it may be considered to be discrimination. You must remember that the 300 Day Rule applies if you wish to file a claim for discrimination.
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