Is It Legal To Ask About an Employee’s Pregnancy?

Q: We have an employee who appears to be showing signs of being pregnant. She has not disclosed any information to her manager or the HR department, but there are scheduling and staffing issues to consider if she will be taking maternity leave. Can we ask about an employee’s pregnancy?

A: We recommend you not ask an employee if she’s pregnant. Generally, employers may not inquire about an employee’s private health information unless an employee has requested an accommodation or leave. It’s understandable that you will need to plan for her absence; however, pressuring her to notify you before she is ready could expose the company to potential liability.

Also, employees are under no obligation to inform their employer of a pregnancy. The only exception is if an employee is planning to take leave under the Family and Medical Leave Act (FMLA), which requires 30 days’ advance notice for leaves that are foreseeable.

Employers often ask this question because they believe there is a need for special precautions with pregnant employees. Here is some additional information:

• You may not require medical certification that an employee may continue working while pregnant.
• You should not put the employee on restricted duty or make any other modifications to her work unless she has informed you that she has restrictions due to a health condition.
• You may not force a pregnant employee into a leave of absence or work restriction while she is still capable of performing the essential duties of her job.
• The employee alone is responsible for making decisions that affect her safety and that of her future offspring.
• You are prohibited from retaliating against an employee who has spoken up or registered any kind of complaint about interference with her sole decision-making.
• Once the employee notifies you of the pregnancy, you should ensure that she knows she has options available to her if at some point she needs an accommodation to do her work.

It’s important to note that pregnancy discrimination in the workplace has been illegal for decades since the passage of the Pregnancy Discrimination Act (PDA) back in 1978. The law, which was an amendment to the 1964 federal Civil Rights Act, prohibits businesses from making employment decisions based on pregnancy. This applies to all aspects of employment, including hiring and firing, pay, job assignments, promotions, layoff, training, fringe benefits (such as leave and health insurance), and other terms or conditions of employment.

For New York employers, the New York State Human Rights Law offers many of the same protections that are offered in the PDA, but it applies to a wider range of employers. If an employer has four or more employees, they are subject to the state law.

Concerned about compliance with labor laws? GTM has the solution. Learn about our HR services for businesses of all sizes, and let us help ensure you are following federal and state laws.