All,

I'm an employee in Georgia who is on a committee to help draft a new disability/pregnancy policy. The group is a partnership of around 25, but there are also 15 associate employees. The policy would apply to the partners and associates.

The group historically has, and continues to desire, to provide full pay during short term disability for up to 90 days. This is a self funded plan. Employees have taken time off with full pay recently for heart surgery and other medical issues.

The sticking point is on pregnancy. Leadership in the group does not feel that the post-partum state is necessarily a disabling condition. They wish to have a separate "maternity" policy that provides one week of full pay and then 60% pay for another 5 weeks.

My understanding is that the pregnancy discrimination act (title vii) would prevent having separate policies for short term disability and pregnancy related disability. My conversations with ob/gyns suggest that a 6 week period following delivery is considered a standard period of disability. I have been unable to find an explicit statement of this fact on the EEOC website.

What is strange, is that these policies are being reviewed by our contract attorneys, and they feel it is compliant.

So my basic question: is the post-partum state a presumptive period of disability, and thus has to be covered under any exisiting short term disability plan.

thanks,
Matt

The sticking point is on pregnancy. Leadership in the group does not feel that the post-partum state is necessarily a disabling condition. They wish to have a separate "maternity" policy that provides one week of full pay and then 60% pay for another 5 weeks. BIG PROBLEM HERE. The period of time in which a woman is medically disabled due to pregnancy must be treated the same way as any other medical disability. So however you handle disability benefits for someone going out on, say, back surgery, you must handle the same way for someone who is disabled due to pregnancy - both before and after the delivery. You need to rely upon employees' doctor's notes to dicate the disability periods. (Keeping in mind that you have the right to send employees to a physician of your choosing if you question what the employee's doctor is stating.)

My understanding is that the pregnancy discrimination act (title vii) would prevent having separate policies for short term disability and pregnancy related disability. The law basically dictates that pregnant employees must be treated the same way as any other similarly situated employee.

My conversations with ob/gyns suggest that a 6 week period following delivery is considered a standard period of disability. Absolutely. In the case of a Cesaraean section, it's typically 8 weeks. If there are medical complications with the pregnancy, then the period of disability could be substantially longer however.

What is strange, is that these policies are being reviewed by our contract attorneys, and they feel it is compliant. That's because contract attorneys know nothing about employment laws. You don't see a heart surgeon if you need brain surgery.

I think you are getting confused on two issues:

1. A period of disability due to pregnancy must be treated in the same manner as a period of disability for any other medically disabling condition. Although you can have different benefits for different "classes" of employees. For example, you can provide fully paid leave for company executives for "X" period of time for a medical disability, and a different/lesser benefit for other classes of employees. You just can differentiate by gender and everyone within each class you define must be provided with the same benefits.

2. If you want to provide additional time off for "parental leave," (whether paid or unpaid) following the actual medical disablity period during which STD or salary continuation is paid, you can do that but you need to provide the same time off benefit to new fathers.

I STRONGLY suggest you consult with an employment law attorney on the policy recommendations your team is putting together. They are totally going down the wrong legal path. Plus the relevant laws (PDA, Title VII, and any State laws you have) make the situation somewhat more complex than I've been able to explain here.

Leadership in the group does not feel that the post-partum state is necessarily a disabling condition. When did those folks get their M.D's? :)

I agree that consulting with an experienced employment lawyer would be a prudent investment.

Here are links to some EEOC guidance on the subject as it relates to federal law:

http://www.eeoc.gov/types/pregnancy.html
http://www.eeoc.gov/policy/docs/benefits.html

Beth,

Thanks for the advice. What you posted is consistent with my recent research. The initial discussion from the group would have covered pregnancy related disability under the existing short term policy and then created a separate category of parental leave for both male and female employees.

This then got perverted...

The group is 35% female, but still a lot of "old-time" biases exist. Even today, a partner still would not believe that the act of delivering a child would be in itself sufficient to justify short-term disability (that is, without a delivery complication)



What is strange, is that these policies are being reviewed by our contract attorneys, and they feel it is compliant. That's because contract attorneys know nothing about employment laws. You don't see a heart surgeon if you need brain surgery.


We are speaking with the lawyers by phone again tomorrow. The law firm is a top national firm, and I found that that we actually have been dealing with the staff in the employment law section. This leaves me even more amazed.

thanks,
Matt

All,

I'm an employee in Georgia who is on a committee to help draft a new disability/pregnancy policy. The group is a partnership of around 25, but there are also 15 associate employees. The policy would apply to the partners and associates.

The group historically has, and continues to desire, to provide full pay during short term disability for up to 90 days. This is a self funded plan. Employees have taken time off with full pay recently for heart surgery and other medical issues.
Matt
Are you in management Atl Matt? Your group is a little confusing to me,who has the final say on the proposal of committee? Is this group made up of management personnel,or rank and file employees?
JoeC