Employers are Waking Up to the Need for Miscarriage Leave

Most employers don’t have policies specifically addressing the loss of a pregnancy, but experts say companies are starting to realize that offering compassionate leave policies for workers who miscarry is a no-brainer.

While nearly half of pregnancies end in miscarriage, according to WebMD, there’s no federal employment statute explicitly dealing with miscarriages or requiring employers to accommodate workers who have one.

"It's really left to the employers' own judgment and discretion as to how they want to deal with it," said Scott Mirsky, an employment principal at Paley Rothman. "Most employment policies are silent on this issue, and it's dealt with on a case-by-case basis, which isn't the best approach."

But the consensus is seemingly shifting towards employers wising up to the advantages of offering thoughtful leave policies that encompass the full spectrum of family planning, including miscarriages, as well as a failed surrogacy, adoption or infertility treatment.

Geri Haight, a Mintz Levin Cohn Ferris Glovsky and Popeo PC partner who chairs the firm's women's initiative, said some companies are already informally accommodating people who experience pregnancy loss or encounter other difficulties in their efforts to grow their family.

"Formalizing the practice, making it available to everyone has significant benefits," said Haight, who was recently part of a successful campaign to implement a compassionate leave policy at Mintz that covers miscarriage.

For employers considering expanding their benefits policies to support workers who experience a pregnancy loss, here are five things they should have on their radar.

Legal Patchwork

While there's no national employment law explicitly addressing miscarriage or entitling workers who lose a pregnancy to time off or a workplace arrangement that helps them recover, experts pointed out federal statutes that touch on the issue and that employers should understand.

The Pregnancy Discrimination Act, which sits under Title VII, bars an employer from treating workers unfavorably because they're pregnant or have a pregnancy-related condition, which the U.S. Equal Employment Opportunity Commission has interpreted to include miscarriage.

Miscarriage could potentially qualify as a disability under the Americans with Disabilities Act — a federal law that requires working with disabled employees on accommodations that put them on equal footing with their peers — though it's rare that courts find a pregnancy loss meets the law's definition of a disability.

"From a legal perspective, miscarriages don't fall so neatly within the anti-discrimination laws," said Wigdor LLP partner David Gottlieb, who recently represented a Colorado woman who said she was fired after disclosing that she had lost a pregnancy. "There is a bit of a hole in the express language of the laws protecting women who have had miscarriages."

Workers for larger companies can take up to 12 weeks on unpaid leave to care for a new family member or manage a serious health condition under the Family and Medical Leave Act. Though, similar to the ADA, miscarriages don't commonly qualify as the kind of condition that triggers the law's protections.

In addition, workers who are trying to start a family likely want to reserve their FMLA leave for bonding with their baby after childbirth or adoption.

"There's nothing that clearly covers this issue," said Paley Rothman's Mirsky. "It's a patchwork of rules and laws to determine whether or not someone who has a miscarriage is entitled to leave to deal with the ramifications of the condition."

However, a smattering of states and localities have recently taken more direct action in this legal arena.

Utah's governor signed a bill in March extending the state's three-day paid bereavement leave to mothers and fathers who experience miscarriage or stillbirth. Illinois legislators have passed a bill mandating employers give time for an employee's miscarriage or failed surrogacy, adoption or infertility treatment. The legislation was sent to the governor's office in late April.

Massachusetts legislators are working on a similar bill that was introduced in March.

California law says workers can take up to four months off for a disability related to their pregnancy, which includes the loss of a pregnancy. New York has a disability program that pays employees who are unable to work because of miscarriage, pregnancy and childbirth.

Washington, D.C., Pittsburgh and Portland, Oregon, have all also implemented laws providing bereavement leave for city employees who have experienced pregnancy loss.

Experts say company leaders need to keep an eye on the shifting legal landscape on a local level to stay compliant.

"Employers need to check their local laws," said Susie Cirilli, a principal at Offit Kurman Attorneys At Law. "Some might not even know their obligations on this issue."

Post-Roe Considerations

In the wake of a potential overrule of the federal right to abortion, support for workers who lose a pregnancy will be even more important.

Many state are poised to ban abortion if the high court makes good on a draft high court opinion overturning Roe v. Wade, the 1973 decision that guarantees abortion access, which was leaked in early May. A final decision overturning Roe could result in abortion prohibitions in 25 states and three territories, largely in the South and Midwest, according to data from the Center for Reproductive Rights.

The medical care for abortions and miscarriages is similar, and some anti-abortion states could restrict medical treatment for miscarriages or criminalize them altogether in the event Roe falls. Someone who loses a pregnancy in these states could also potentially face criminal liability under these stringent laws.

For employers in these localities, having a policy that supports workers who have a miscarriage could serve as a well-needed morale boost, said Offit Kurman's Cirilli.

"This is going to be half your workforce that is going to be affected by this," Cirilli said. "Post-Roe, savvy employers are going to start looking for things they can do to support individuals dealing with pregnancy issues, like miscarriage."

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