Does the Pregnancy Disability Leave Law Sufficiently Protect Temporary Workers? | DCR Workforce Blog

Does the Pregnancy Disability Leave Law Sufficiently Protect Temporary Workers?

pregnancyIn recent years, the growth in women holding critical positions in the workplace has led to increased legal protections on behalf of pregnant workers. The Bureau of Labor Statistics indicates that 80 percent of all U.S. working women will become pregnant at some point in their working lives. In the past decade, more than 70% of countries have amended their laws to provide greater protection to pregnant employees.

Most of us can wallpaper our offices with articles discussing discrimination against women of child-bearing age.  However, rights and obligations regarding pregnant temporary workers are less clear and warrant discussion and consideration.

The U.S. has passed two major federal laws that provide legal protections to pregnant employees as well as employees who might become pregnant.

PREGNANCY DISCRIMINATION ACT OF 1978 - This legislation stipulates that all employers treat pregnant and non-pregnant employees in the same way, both in terms of benefits received and all other respects. Pregnant women are afforded the same rights as anyone else with a medical related disability. The law prevents employers from firing a pregnant women based on her pregnancy or pregnancy related illness.  Women cannot be forced to take a mandatory maternity leave. Employers must offer modified work tasks or disability leave with or without pay based on the organization’s policies. Jobs are protected during maternity leave. Pregnant women may also accrue seniority or vacation while pregnant and remain eligible for bonuses or pay increases if these benefits are offered to all employees.

FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA) – Pregnant women may take time off for childbirth or due to complications related to pregnancy, or to care for a newborn. The FMLA stipulates that men and women can take as many as 12 weeks of unpaid leave annually for the birth or adoption of a child, care of a sick child, placement for foster care, or because of morning sickness or other illness (the illness does not have to be pregnancy-related).

While protections afforded women and their families under these laws are fairly clear and understood, things become murky when determining how these laws affect women engaged in temporary work.  On any given day, there are about 2 million individuals who work at temporary jobs in the United States. The key to sorting this issue out is to recognize that the laws provide specific protections to employees.

The Equal Employment Opportunity Commission (EEOC) gives specific guidelines regarding temporary workers: Staffing firm contract workers are generally covered under the anti- discrimination statutes. This is because they typically qualify as “employees” of the staffing firm. The agency is responsible for and bears the financial burden of recruiting, screening, testing and hiring workers; payroll expenses and paperwork; payroll and withholding taxes; unemployment and workers’ compensation insurance; and any employee benefits they may wish to provide. Thus, staffing firms and the clients to whom they assign workers may not discriminate against the workers on the basis of race, color, religion, sex, national origin, age, or disability – including pregnancy.  However, there are some significant differences that need to be considered:

  • The FMLA requires individuals to have worked for an employer at least 1 year before being protected by it.  Many contract assignments are for shorter periods of time.
  • Pregnancy Discrimination Act does not specify that individuals must be offered healthcare and other benefits – only that the benefits must be made available all if available to anyone.  Many staffing agencies offer minimal, if any benefits.
  • If an agency contractor accepted the assignment for a specified period of time, and is unable to stay on for the length of the contract due to pregnancy, the contract can be cancelled for failure to meet conditions of the agreement.

The Pregnancy Discrimination Act and FMLA does not address the needs of self-employed workers.  Individuals working as independent contractors (1099s) are self-employed women.  They are not entitled to maternity protection from any company where they are on assignment, even if the assignment has lasted for years.

While temporary engagements – either through a staffing agency or directly as an independent contractor – can provide clear benefits in terms of work-life balance and a diversity of challenging assignments.  However, in making career choices women and their families must also consider their options in terms of leaves required for child bearing and child rearing.  Temporary workers should inquire about each company’s benefits and maternity leave policies prior to accepting a position.  If this may be an issue, ask to speak with Human Resources or seek legal advice prior to beginning a new engagement.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.

7 Responses to “Does the Pregnancy Disability Leave Law Sufficiently Protect Temporary Workers?”

  1. Beatrice Clarke says:

    I am high risk pregnancy and a Independent contractor i will be taking leave earlier than my due date, sincei have no coverage for temporary disabilitily what other options i have while out on leave to deliver my child??

    • admin says:

      In your note, you mentioned that you are an independent contractor. As such, you will be considered to be self-employed.

      So you would not be eligible for any of your client’s employee-related benefits, including a leave of absence, healthcare benefits, etc. If you have any questions regarding your status, you should consult an employment attorney.

  2. Sandra says:

    I have a temporary pregnant employee I hired as a receptionist on 1/4/2016 knowing she was pregnant. She has been tardy 10 times, has been absent twice. She says she’s protected under the Pregnancy Disability Act due to her pregnancy. She was 30 weeks when we hired her. She is harassing our HR Assistant by humiliating her in front of co-workers. An employee from another dept said the temp is trying to make the assistant look bad so they put her in the assistants position prior to her leaving on maternity leave which will secure her job upon return. I want to terminate her and keep my assistant. I’d rather start over with a new receptionist which we will have to do anyway for a 6-week assignment and hope the new one works out. Company policy states more than 1 absence or 3 tardies per month is grounds for termination. However, what to do about a pregnant lady that is not playing by the rules? Are our hands tied?

    • admin says:

      Hi Sandra,

      That’s a really challenging situation and requires careful handling, as you seem to have recognized.

      Allow me to point you to another of our posts on this topic – https://blog.dcrworkforce.com/guidance-accommodating-pregnant-workers.

      Please consider that pregnancy is a very difficult time for women (more so for some than others) and choose the option of being more accommodating for the time she is with you. That said, it’s also important to remember that insubordination, rudeness and tardiness are all workplace issues which cannot be confused with accommodating pregnancy disability, which your worker may be doing. Be absolutely certain that you have provided her with the office policy that clearly specifies the rules for all workers.

      You will need documented evidence that she is aware of the policy and had a copy issued to her upon joining. You will also need documented evidence of the occasions on which she violated the rules and had a copy issued to her.

      We aren’t lawyers, so check with your legal counsel prior to taking action.

  3. Diamond Schnell says:

    I was hired as a temp to hire as a customer service agent, everything seemed to be going great until my supervisor found out out I was pregnant after finding out she asked me personal questions such as how will I take care of the baby do I have health insurance days later more accounts were added to my responsibility perhaps to test my ability to work . I’m afraid they won’t hire me because I am pregnant and I won’t be able to find a job at 7 months. It seems like everything was going great until she noticed I was pregnant any advice on what Precautions I should take.

    • Lalita Vempati says:

      Hi Diamond,

      Thank you for writing in.
      As a temp-to-hire, you do need to make sure that the supervisor is happy with you and your performance. Remember no sensible employer wishes to lose a worker who delivers results and plays by the rule book.
      Having said that, it’s better to avoid all actions such as being absent without reason or anything else that may be considered an actionable offence by the standards of your workplace. All the best.

  4. Andrea says:

    Hello, I was hired as a Temporary Limited Time employee. I have been in the job for 6 months and I have completed my probation period. I am currently 16 weeks pregnant. My employment contract ends at the end of September. I was wondering if this law (or any other laws) protect me from terminating my contract while pregnant. Is there any possibility of appealing for a contract extension due to pregnancy? or to be covered for maternity leave? Thank you!

Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.