If you are pregnant or have recently had a child and you believe an employer has denied your right to maternity leave or you believe an employer has otherwise discriminated against you, contact the Montana Human Rights Bureau. You must file your complaint within 180 days of the alleged violation.
A Pregnant Employee has the Following Rights:
- Nondiscrimination in Hiring - An employer may not refuse to hire an applicant because she is pregnant or plans to become pregnant.
- Continued Employment - An employer may not fire or discharge an employee because of her pregnancy.
- Reasonable Maternity Leave - An employee is entitled to a reasonable leave of absence for the temporary disabilities associated with childbirth, delivery and related medical conditions. The employer may not place restrictions on the leave which would not apply to leaves of absence for any other valid medical reason.
- No Mandatory Unreasonable Leave - An employer may not require an employee to take a mandatory maternity leave for an unreasonable length of time.
- Use of Accrued Benefits and Leave Time - A pregnant employee is entitled to use any disability benefits, sick leave, vacation time, annual leave or compensatory time accrued pursuant to plans maintained by the employer for her maternity leave. If the employer maintains no such plans or benefits, the employee is entitled to maternity leave without pay.
- Equal Treatment in Employee Benefit Plans - Disabilities as a result of pregnancy, childbirth or related medical condition are, for all job related medical conditions are, for all job-related purposes, temporary disabilities. An employer may not treat an employee disabled due to pregnancy less favorably than an employee with any other temporary disability under any health, medical temporary disability or sick leave plan maintained by the employer. All benefits provided to temporarily disabled employees pursuant to such a plan must be provided to pregnant employees.
- Reinstatement after Maternity Leave - An employee who has signified her intent to return at the end of a reasonable leave of absence for maternity must be reinstated to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits. The law provides a limited exception to this rule for private employers when the employer's circumstances have changed so much that it is impossible or unreasonable to do so. For example, an employer who has gone out of business while the employee is on maternity leave would not be required to reinstate her.
What is Reasonable Maternity Leave?
Whether maternity leave is reasonable is determined case by case based upon the ability of the employee to perform her job. In the case of normal pregnancy and delivery, medical providers typically consider a reasonable leave to be six to eight weeks after delivery.
If the employee is unable to perform her job prior to delivery, or if there are complications such as illness or surgical delivery, necessary leave may be longer than normally required. If the employer and the employee cannot agree in establishing a reasonable period of time for the leave, the employer should rely on the judgment of the employee's physician or other medical provider who has actually examined the employee.
An employer and an employee may mutually agree to a longer period of leave, either compensated or uncompensated, than would otherwise be required by law. An employer is not required to provide maternity leave for child care beyond the period of actual disability. If an employer permits the use of leave beyond the period of disability, however, it should allow child care leave for both mothers and fathers.
As a condition of maternity leave, an employer may require the employee to provide medical verification that the employee is unable to perform her employment duties.
Leave for fathers and parents of adopted children are not required by state law (except for employees of the State of Montana) but may be required under federal law. An employer may, however, voluntarily provide for such leave.
If You are an Employer
Know your company's disability benefit policies and policies regarding sick, vacation and annual leave.
Communicate with your pregnant employee about the anticipated need for maternity leave. Put into writing any agreements concerning the leave. Make sure the employee understands her obligations, including the obligation to return to work on a specified date and provide medical verification if required. Make sure the employee knows how to request an extension of her leave should complications arise. If an employee indicates her intent to voluntarily resign because of her pregnancy, obtain her resignation in writing after making sure she is aware that you a re prepared to grant a reasonable leave of absence in accordance with your policies are required by law.
Make sure that any replacement employee understands that his or her employment is temporary, unless your employee resigns or you make other arrangement for reinstatement after the maternity leave. Except in extremely limited circumstances, you must reinstate the employee to her original position or an equivalent position following her maternity leave.
Advised Accommodation For Breastfeeding Mothers
In 2007, the Montana Legislature passed legislation requiring public employers (all state and county governments, municipalities, school districts and the university system) to provide the following accommodations for breastfeeding mothers.
Although this legislation does not require private employers to provide these accommodations, it is advised.
- Provide a written policy that supports and encourages the practice of breastfeeding, and accommodates breastfeeding needs of employees.
- Ensure that employees are provided with adequate facilities for breastfeeding or the expression of milk for their child.
- Make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where an employee can express breast milk.
- Provide reasonable unpaid break time each day to an employee who needs to express breast milk; unless this would unduly disrupt the employer's operations.
A pregnant employee may have additional protections under the federal Family Medical Leave Act. For information on the laws relating to the Family Medical Leave Act, visit the U.S. Department of Labor website or call 1-866-487-9243.
Contact the Montana Human Rights Bureau if you have further questions.