Q: Can I ask an employee if she's pregnant?
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.
We are often asked this question because employers believe they need to take special precautions with pregnant employees, so allow me to give you a bit of additional information on that subject:
• 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.
Understanding the Family and Medical Leave Act (FMLA) and all of its provisions can be daunting. Watch our webinar now where we’ll help you navigate the complexities, starting with an overview of FMLA regulations and common issues.