Pitfalls to Avoid When Employees Return From Parental Leave

The United States is the only developed country without mandated paid parental leave at the national level. However, that does not mean that American workers cannot take unpaid parental leave, nor does it prohibit private-sector employers from offering paid parental leave as a benefit. However, while U.S. law does not mandate paid parental leave, it does impose rules and regulations regarding who can take parental leave, how long they may be away, and what can and cannot occur when they return. Those laws create myriad pitfalls that employers can easily fall into, which is why employers seeking to ensure that their employment policies comply with the law should contact a Richmond employment lawyer.

Failure to Be Reinstated to the Same or Equivalent Position

Consider this scenario: You have an employee who takes 10 weeks of unpaid maternity leave under the Family and Medical Leave Act (FMLA). While you fully plan to reinstate her upon her return, work goes on, and you reassign other employees to handle her tasks while she is out. When she returns, you reassign her to another position in a different department that has become available while she was away. Is that lawful? Probably not.

The FMLA requires employers to allow employees to return to the same job or an equivalent job. An “equivalent job” is one that is virtually identical to the employee’s original job in pay, benefits, and other terms and conditions. Even small changes following parental leave can lead to legal challenges, and enforcement agencies and courts generally look skeptically on role changes after parental leave.

Of course, there are always exceptions. For example, if the employee had been terminated anyway — say, because her department was eliminated during her leave — the employer would not be obligated to reinstate her. However, a good rule of thumb is to always consult a Richmond employment lawyer before terminating an employee during or shortly after their leave.

Unintentional Discrimination or Retaliation

Title VII of the Civil Rights Act and the Virginia Human Rights Act prohibit sex-based discrimination, which includes pregnancy and childbirth. Pregnancy discrimination can include discrimination based on current pregnancy, past pregnancy, potential pregnancy, medical conditions related to pregnancy, having or choosing not to have an abortion, or use or non-use of birth control. Examples of pregnancy-related discrimination post-parental leave could include:

Passing over a new parent for a promotion
Excluding a new parent from decision-making processes
Assigning a new parent less desirable or visible work

Some adverse post-leave employment actions could also be considered retaliation, which is prohibited under the FMLA. Generally, retaliation occurs when an employer takes an adverse action against an employee for engaging in a protected activity. Protected activities under the FMLA include:

Requesting FMLA leave
Taking FMLA leave
Filing a charge for a suspected violation of FMLA regulations
Cooperating with an FMLA violation investigation

So, if an employer terminates an employee after taking FMLA leave, that could be considered both discrimination and retaliation.

Post-Leave Pay Disparities

We’ve already established that returning workers must be reinstated to the same or equivalent position, which includes reinstatement at the same or equivalent pay grade. But, unfortunately, many workers who return find that they’ve been left out of raises, bonuses, or commissions they would have been entitled to had they not taken leave. According to the Equal Employment Opportunity Commission (EEOC), returning workers have the right to:

The same or equivalent pay premiums
The same opportunity for overtime
Any unconditional pay increases that occurred while the employee was out
Any unconditional bonuses or payments

The rules for conditional bonuses get a bit more complicated. Generally, when a bonus or commission is based on specific goals, it is not unlawful to deny it to a worker who took FMLA leave, so long as other workers who took equivalent types of leave (e.g., sick leave) are also ineligible for it.

Failure to Re-Onboard

It’s often difficult for workers who have been away for significant periods for parental leave to return to their jobs, especially considering that circumstances at work may have changed while they were out. And while there is no federal or state law mandating that employers provide particular re-onboarding services to returning employees, ensuring a smooth transition can nonetheless go a long way in preventing legal claims. For example, a returning worker who receives improper support may interpret it as retaliation. For more information about minimizing that risk, please contact a Richmond employment lawyer.

Improperly Denying or Mishandling Accommodation Requests

Many post-parental leave legal headaches arise under laws prohibiting sex discrimination, but they can also arise under laws prohibiting disability discrimination. That’s because a worker’s limitation due to, affected by, or arising out of pregnancy or childbirth can be considered a disability under both federal and Virginia law. Once an employee demonstrates a disability, an employer must provide a reasonable accommodation unless doing so would create an undue hardship. Post-leave pregnancy-related reasonable accommodations under the Virginia Pregnant Workers Fairness Act could include:

More frequent or longer bathroom breaks
Breaks to express breast milk
Access to a private location to express breast milk
Variations in work schedule
Permission to work remotely
Leave for health care appointments

Employers may deny such requests only if granting them would cause undue hardship, which is a very high bar. To avoid lawsuits based on allegations of pregnancy-related disability discrimination, employers should engage in a collaborative process with employees to arrive at a mutually agreeable and workable accommodation.

Get Parental Leave Right With Help From a Richmond Employment Lawyer

Parental leave can be a tricky situation for employers, which is why it is essential that they have policies in place to ensure compliance with applicable laws. For more information about crafting parental leave policies and procedures — or advice if an issue has already arisen — please contact a Richmond employment lawyer at Pierce/Jewett by calling 804-502-2320 or using our online contact form.