How do small business owners and employees handle maternity leave policies? And what are the rights and responsibilities of both? In 2019, the ADA Center for Professional Success surveyed practicing dentists on the topic and interviewed ADA legal counsel Cathryn Albrecht, about maternity leave in an episode of Beyond the Mouth, the ADA practice podcast.
“It’s a popular misconception among pregnant ladies that there would be some sort of accommodation in the workplace that would permit them to take some time off of work and take care of the baby, and then come back and resume their work with the practice,” Ms. Albrecht said. “Folks need to keep in mind that not every practice will be covered by the laws that afford employees (family) leave. Don't assume that your job is necessarily going to be protected. And number two, don't expect that [family leave] is going to be paid.”
Ms. Albrecht advises associate and employee dentists that a wide variety of federal, state and local laws cover pregnancy and family leave issues, some of which may conflict with each other, and many of which don’t apply to small businesses.
“The first law that relates to maternity leave is Title VII of the Civil Rights Act of 1964, which is the big federal anti-discrimination law, that among many other things prohibits gender discrimination and sex discrimination in the workplace” she explains.“ Title VII requires employers to treat female and male employees with equal consideration and not to favor one over the other. Title VII and the Pregnancy Discrimination Act amendment applies to those with 15 or more employees.
“The other big one is the Family and Medical Leave Act (FMLA), which provides job-protected leave. You leave for a while, you come back, and you get back your job or an equivalent job. FMLA basically provides up to 12 weeks of job-protected leave for employees of companies with 50 or more employees within a 75-mile radius. So that’s a pretty big group practice.”
A wide variety of rules
According to Ms. Albrecht, state and local laws often provide more protection than federal laws, which generally only set minimum standards. In essence, employee leave is regulated by whatever rules are most beneficial to the employee, so it’s important when you’re expecting a baby to do your homework in advance to save disappointment later.
“A lot of these laws have small business exceptions,” she notes, “which means that if the practice does not have more than 15 or 20 employees, they're not covered by the laws that would afford leave. However, that will vary from state to state and locality by locality.”
Another law that may apply is the Americans with Disabilities Act, which includes a requirement to reasonably accommodate an employee if he or she incurs an injury or develops an illness.
“Pregnancy can create some conditions that are, for the purposes of application of the Act, considered disability, things like gestational diabetes or early dilation or high blood pressure,” says Ms. Albrecht. “It also applies after birth; if you are breastfeeding the baby, that would be a pregnancy-related condition that would require an employer to make some accommodation to let the new mom express milk at work. And most states now have some requirements for employers to make available a private space for women to breastfeed.”
In spring 2019, the ADA Center for Professional Success conducted an online survey of dentists practicing in the United States. Among other things, the survey found that 46% of dental offices offer some form of parental leave. However, the time off is often unpaid.
Other findings from the survey include:
- Accommodating coverage during parental leave is the single largest issue that concerns respondents (57% of women, 66% percent of men).
- Larger practices are more likely to carry short-term disability insurance.
- Larger practices are more likely to offer a parental leave benefit (either stand-alone or via short-term disability).
- Medium-sized practices that allow parental leave tend to pay less (highest percentage of unpaid).
- There is variety in accommodating time off by practice size. Even the largest practices report reduced productivity.
- Larger practices tend to allow longer time off for maternity leave.
- Larger practices are more likely to grant paternity leave.
- Only the very largest practices (100+ staff) are likely to grant time off for an adoption. As many as half or more respondents from the other practice sizes simply did not know their office policy on this topic.