Pregnancy and the Workplace: Know Your Rights

The Pregnancy Discrimination Act (PDA) is a federal law that prohibits public, private, or government contractor employers with fifteen or more employees from discriminating against an employee or applicant on the basis of pregnancy. 

The Americans with Disabilities Act (ADA) is a federal law that protects qualified individuals with a disability from discrimination in the workplace. The ADA also provides reasonable accommodations to qualified individuals with disabilities. The ADA applies to employers with fifteen or more employees. 

Under the PDA, an employer may not make employment decisions because of pregnancy, childbirth, or related medical conditions.  

This means an employer cannot take certain actions, including:  

• refusing to hire,  

• firing,  

• demoting,  

• denying a promotion, or  

• making any other decision that adversely affects an employee if pregnancy, childbirth, or a related medical condition is a motivating factor in the decision.  

The PDA also requires that employers treat women affected by pregnancy, childbirth or related medical conditions the same as other applicants or employees for all employment-related purposes, including receipt of benefits.  

If an employee is temporarily unable to perform her job duties because of a pregnancy-related condition, she must be treated the same as any other temporarily disabled employee.  

An employer must hold open a job for a pregnancy-related absence for the same length of time as the job is held open for an employee on sick or disability leave for other medical conditions.  

The PDA also protects employees from harassment because of pregnancy, childbirth, or a related medical condition.  

To learn more, read Pregnancy Discrimination and Pregnancy-Related Disability Discrimination. 

Pregnancy is not a “disability” under the ADA. Under the ADA, however, various pregnancy-related complications (e.g., gestational diabetes) may render an employee disabled for purposes of the Act.  

Reasonable accommodations for workers with a pregnancy-related disability can include: 

• job restructuring,  

• part-time or modified work schedules,  

• reassignment to a vacant position,  

• acquisition or modification of equipment,  

• adjustment or modification of examinations,  

• training materials or policies,  

• the provision of interpreters or readers, and  

• making existing facilities readily accessible and usable by individuals with disabilities. 

Although leave is not specifically mentioned as a reasonable accommodation, the EEOC and courts have taken the position that an employee may take leave as a reasonable accommodation under the ADA.  

The ADA also prohibits employers from denying employment opportunities to a job applicant or employee who is a qualified individual with a disability in order to avoid making reasonable accommodations. 

To learn more, read Pregnancy Discrimination and Pregnancy-Related Disability Discrimination. 

Yes. In addition to the federal laws that protect pregnant employees, Texas law prohibits businesses with fifteen or more employees from discriminatory treatment of pregnant employees and requires reasonable accommodation for employees with disabilities.  

Disability laws can come into play for a pregnant employee if the pregnancy becomes complicated and results in something that can turn into a disability, such as gestational diabetes. 

Also, Texas municipal and county employers must make reasonable efforts to accommodate employees who are partially physically restricted by pregnancy. This may include making a temporary work assignment within the employee’s office. 

The Family and Medical Leave Act (FMLA) permits eligible employees to take up to twelve weeks (and upwards of twenty-six weeks in some cases) of job-protected leave from work for certain “qualifying events.”  

The FMLA does not require that the leave be paid.  

Employers may require their employees to use other types of leave such as paid time off (PTO), sick time or short-term disability, which may be paid or unpaid depending upon the employer’s policies. 

The FMLA only applies to employers with fifty or more employees within a seventy-five-mile radius for twenty calendar weeks in the current or preceding calendar year are covered employers under the Act. 

The FMLA also covers public agencies, public and private elementary and secondary schools regardless of the number of employees.  

For an employee to be eligible for FMLA leave, she must have been employed for the twelve months preceding the leave and worked at least 1,250 hours during those twelve months. The employee must also work at a worksite having at least fifty employees within a seventy-five-mile radius. 

For more information, read about the Family and Medical Leave Act. 

Qualifying pregnancy, maternity, and paternity-related events include:  

• Birth and care of your newborn or adopted child;  

• Placement of a child by the State for foster care;  

• The need to care for your child with a serious health condition; and  

• A serious health condition that makes you unable to perform the functions of your position. 

For more information, read about the Family and Medical Leave Act. 

If you are planning to take FMLA leave following childbirth or adoption, you should: 

• Provide at least thirty days written notice to your employer prior to taking leave. In circumstances where such notice is not possible, you should provide notice of the need for FMLA leave as soon as possible.  

• Provide medical proof of the need for FMLA leave. Note, your employer may request second or third medical opinions at the employer’s expense.  

• Make arrangements to ensure that your benefits are not interrupted while on FMLA leave, and address issues regarding the use of accrued paid time off, sick leave, disability leave or other leave that the employer may require you to exhaust prior to taking, or may run concurrently with, FMLA leave. 

• Be aware that employers may also require an occasional “check-in” to verify your FMLA status and intent to return to work.  

Generally, at the conclusion of a qualified leave period the employer must reinstate you to your former or equivalent position, with the same terms and benefits.  

Employers may not treat female employees with infants or young children less favorably than other employees. 

The Patient Protection and Affordable Care Act (ACA) amended Section 7 of the Fair Labor Standards Act (FLSA) to provide that certain employees receive breaks for the purpose of pumping breast milk at work. There is no requirement, however, that these breaks be paid.  

The ACA’s requirements concerning lactation apply to employers with fifty or more employees. Employers with fewer than fifty employees are exempt from coverage if they can establish that compliance would impose an undue hardship.  

Under the ACA, only non-exempt employees (those exempt from the overtime requirements of Section 7 of the FLSA) are entitled to the lactation protections afforded by the ACA. Stated differently, employees who qualify for an exemption from the FLSA’s minimum wage and overtime provisions are not covered.  

Under the ACA, employers are required to provide: 

• a reasonable break time to express breast milk for their nursing child each time the employee has a need to express breast milk for one year after the child’s birth, and 

• a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by the employee to express breast milk. Although an employer is not obligated to maintain a permanent, dedicated space for nursing mothers, the employer must take measures to ensure the employee’s privacy.  

Federal law also protects prohibits employers with fifteen or more employees from discriminating based on breastfeeding or lactating.  

Federal law also requires most health plans to cover breastfeeding support, supplies, and counseling at no cost to the mother. 

Read more on the Break Time for Nursing Mothers page, provided by the U.S. Department of Labor.   

Yes. In addition to the federal laws that protect nursing or lactating employees,   

Texas law requires public-sector employers to: 

• provide a reasonable amount of break time and a private place, other than a multiple user bathroom, to express breast milk, as often as the employee needs to,  

• make reasonable accommodations for the needs of employees who express breast milk, 

• adopt a written policy that states that the public employer supports the practice of expressing breast milk, and 

• ensure that no adverse action is taken against employees who exercise these rights. 

To learn more, read the Nursing Mothers page on the Texas Workforce Commission (TWC) website.  

• Start by knowing your rights. Fully understand what you are entitled to and your employer is prohibited from doing under the law. Read the online resources provided by Equal Opportunity Employment Commission (EEOC), such as Legal Rights of Pregnant Workers Under Federal Law and Pregnancy Discrimination and Pregnancy-Related Disability Discrimination. 

• Keep good documentation. Make requests and complaints related to pregnancy or leave in writing and document your employer’s response. Include names, dates, and record as much detail concerning the situation or conversation as possible. Keep medical documentation concerning your pregnancy, childbirth or any serious health conditions you or your child experience. 

• Follow your employer’s policies for making a complaint. Many employers have written policies in place for making a complaint or otherwise addressing pregnancy and leave-related issues.  

• File a charge of discrimination. If you believe you are being discriminated against because of pregnancy, childbirth, or a related medical condition, file a formal complaint called a Charge of Discrimination with the EEOC or Texas Workforce Commission.  

To learn more, read Pregnancy and the Workplace: Know Your Rights – A Guide for Employees, or watch the Pregnancy in the Workplace video, provided by Texas Young Lawyers Association.   

Also read Pregnancy Rights in the Workplace, on the TWC website.