A common question for Texas employees is, “what rights do I have to maternity leave”? Under Texas law, employees have limited rights to maternity leave. Texas state law does not increase maternity leave rights beyond the rights protected under federal law. The rights to maternity leave come from the Pregnancy Discrimination Act and the Family Medical Leave Act (FMLA). Under very specific situations the Americans with Disabilities Act can apply when medical complications arise. Beyond these laws, employees will only have rights based on what the employer offers under its own policies.
Pregnancy Discrimination Act and Maternity Leave in Texas
The Pregnancy Discrimination Act of 1978 amended Title VII’s anti-discrimination provisions to include pregnancy discrimination. The PDA prohibits employers from terminating employees because they are pregnant or recently gave birth.
The PDA also requires employers to give pregnant employees the same leave benefits as employees with short term health conditions. That means if employers offer leave for employees with injuries then it must give pregnant employees the same leave.
However, it does not require employers to offer leave time. If the employer would not offer other employees leave then it does not have to offer pregnant employees leave. If the employer must offer maternity leave under the Pregnancy Discrimination Act then it must allow the employee to return to a position of the same rights and responsibilities just as it would for other employees permitted to take leave for short term health conditions.
These protections under the Pregnancy Discrimination Act are mirrored in the Texas Labor Code’s anti-discriminatory provisions.
Keep in mind that the PDA preceded the FMLA. The leave protections for FMLA did not exist at that time. Employees only received medical leave at the generosity of the employer or under an employment contract.
Family and Medical Leave Act and Maternity Leave in Texas
FMLA protects up to twelve weeks of unpaid leave per year for a serious medical condition or childbirth. To qualify for FMLA leave, the employer must employ at least fifty employees within a seventy-five mile radius of the employee’s work site and the employee must complete one year and 1,250 hours of service with the employer. If the employee is eligible for FMLA leave, the pregnant employee can qualify for maternity leave under FMLA.
Pregnant employees can take maternity leave both prior to childbirth, if there are medical reasons for the pregnant employee to leave work, and after childbirth to care for the newborn baby. To obtain FMLA leave, the employee must provide the employer medical certification, if the employer requires it, with reasonable prior notice, if FMLA leave is for a medical condition.
At the end of FMLA-protected leave, the employer must return the employee to the same position she left or a similar position with the same rights and responsibilities as the prior job. If the employee requires additional maternity leave, the employee may need to invoke the PDA to expand leave or if there is a chronic medical condition resulting from the childbirth the employee may be able to request additional leave as a reasonable accommodation under the Americans with Disabilities Act.
Americans with Disabilities Act and Maternity Leave
Normally the Americans with Disabilities Act, or ADA, will not apply to maternity leave. The ADA gives qualified employees with a disability the right to request accommodations for the disability. Leave can be a reasonable accommodation under the ADA; however, the ADA does not consider pregnancy a disability so pregnancy will not invoke the ADA to protect leave.
If a medical condition caused by pregnancy or childbirth arises that would be considered a disability and leave would be a reasonable accommodation for that condition, then the mother can request ADA leave for that medical condition and that may extend the maternity leave time. If leave is granted under the ADA as a reasonable accommodation then the employer must allow the employee to return to the same position or a similar position with the same rights and responsibilities.
Leave as a reasonable accommodation for a pregnancy or childbirth-related medical condition is not very common. If the mother cannot prove the resulting condition meets the ADA definition of a disability and the mother cannot perform the essential functions of her job after returning from leave then she will not qualify for ADA protection.
Other Maternity Leave Protections in Texas
Employees may have additional protections for maternity leave. Many employers automatically grant employees a certain number of paid or unpaid weeks of maternity leave. This right under the employer’s policy will duplicate leave protections under the FMLA and PDA. However, the employer may offer fewer weeks of maternity leave than the twelve weeks of FMLA leave. The employee will need to invoke FMLA protections to request additional leave.
Due to the growing number of claims under FMLA, many employers are changing their maternity leave policies to approve a certain number of paid weeks, if they offer paid maternity leave, and then allow the employee to request up to twelve weeks as a single request for maternity leave and FMLA leave.
This facilitates the process for both employer and employee and avoids situations where the employee has invoked FMLA through a maternity leave request but the HR or management personnel fails to treat the request as an FMLA request as well.
Employers are free to offer more than twelve weeks of maternity leave; but unless the PDA or ADA also protects the maternity leave then the employee’s job is only protected by the employer’s willingness to follow its own policy.
If the employer discharges a new mother after twelve weeks of leave and there is no PDA or ADA protection involved then the employee’s legal remedy usually is limited to unemployment benefits. The mother might have some contract-based claims based on the employer’s policies; but these claims rarely succeed. Employers usually add a disclaimer to their employee handbooks that disclaims that the policies in the handbooks are not contractual.
If the mother works under an individual employment contract or a union contract then the contract may include leave rights. If the employer violates these provisions, the employee may follow a grievance or arbitration procedure under the contract. Alternatively, the employee may enforce the contract or obtain monetary damages for breaches of contract.