First, it’s crucial to look at any state leave laws that may be applicable. This is especially the case if the employee works in a state with enhanced leave rights for pregnant employees such as California, Connecticut, or Oregon. Some states have rules around maternity leave and pregnancy disability that are a little more complicated. In Oregon, for example, an employee can take up to 12 additional weeks for pregnancy disability leave in addition to their other leave rights under the Oregon Family Leave Act.

After analyzing state leave rights, it’s time to turn to any applicable accommodation rights such as the Americans with Disabilities Act (ADA). While pregnancy itself is not generally a disability that is covered by the ADA, pregnant workers can develop complications such as diabetes that can be considered a disability. If the ADA is not applicable, there may still be an applicable state pregnancy accommodation law (currently in effect in over 30 states). State pregnancy accommodation laws require employers to provide reasonable accommodations to workers affected by pregnancy, without showing that their needs rise to the level of a “disability” under the ADA. Finally, because of the federal Pregnant Workers Fairness Act (PWFA), as of June 27, 2023, all employers with 15 or more employees will be required to do the same.

Once you’ve determined that there is an applicable accommodation law, it’s time to conduct an interactive process with the employee (i.e., a good-faith conversation about the employee’s needs and the potential accommodations that could meet those needs). This does not mean that an employer must provide a set amount of “maternity leave” based on the employee’s request. The accommodation(s) will vary based upon the employee’s medical needs, and this is an individualized discussion. Like the ADA, the newly passed PWFA provides that an employer is not required to supply an accommodation that imposes an undue hardship on its business operations, but employers should be cautious as this is likely to be narrowly construed by the Equal Employment Opportunity Commission (EEOC), the PWFA’s enforcing agency.

Finally, consider that an employee may want to return to work but may need an accommodation(s) to allow them to do so. Potential accommodations are plentiful and can include modified seating (or allowing seating where standing is ordinarily required), bathroom breaks, a temporary transfer, or flexible scheduling. An employer can’t force an employee to take a leave if another reasonable accommodation can be provided to help the employee remain at work. Also, keep in mind that if the employee needs to express breast milk, they will also have enhanced workplace protections, either under a state lactation rights law, the new federal PUMP for Nursing Mothers Act, or both.