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LEAVE POLICY GIVES BIRTH TO UNCERTAINTY 'Hit-or-miss' approach to maternity absences can bring lawsuits


Thanks to modern science, conception and childbirth are no longer mysteries for most people. But, for many pregnant women, one related issue remains shrouded in darkness: the terms of their maternity leaves.

Whether out of a sense of complacency or a distaste for bureaucracy, many smaller companies lack formal maternity leave policies. Instead, they grant leave on an ad hoc basis.

That's perfectly legal. But companies that do so may be playing with fire, many attorneys say.

"The employer who treats [maternity leaves] as a hit-or-miss proposition is opening himself up to a lawsuit," said Craig Peyton, a labor attorney with Weinberg and Green. An employee who can prove she's been handed a worse deal than other workers may be able to file charges of discrimination.

On the other hand, creating and adhering to a fair, generous policy can help attract and keep good employees, Mr. Peyton said.

When you're establishing guidelines for maternity leave, you'll have to consider many factors, including whether they will be included within a medical leave policy.

Other issues to examine are length of leave and payment. When making these decisions, it's important to be both liberal and prudent, said Leonard Cohen, a labor lawyer with Frank, Bernstein, Conaway & Goldman.

"For employee morale purposes, you should always be as generous as you can, but you need to weigh that against the ability of the company to afford benefits," said Mr. Cohen.

Many companies choose to include maternity leave within an overall medical or disability leave policy.

Under this framework, pregnant employees receive the same benefits and rights as those who take time off to recover from appendicitis or a broken leg. (Indeed, if your company already has a medical leave policy, federal law mandates that it apply equally to pregnant women and to other temporarily disabled employees.)

Some companies create a separate maternity leave policy that provides a female employee with extra time for child care, but they might have to grant new fathers equal time, according to Mr. Cohen.

Whether or not you create a separate maternity leave policy, length of leave is a factor you'll have to consider.

Six to eight weeks is the average length of leave in this country, compared to a year in some European nations -- a glaring disparity. For about a decade, organizations such as Cleveland-based 9 to 5 and the National Association of Working Women have been lobbying Congress to require medium-sized and large companies to grant employees a 12-week unpaid family and medical leave.

So far, their efforts haven't succeeded.

"Too many companies don't realize what a major physical operation having a baby is," said Barbara Otto, a spokeswoman for 9 to 5. Noting that some companies force employees to return to work a week after delivering their babies, she added that childbirth "encompasses everything from the emotional to the physical and takes weeks to recover from."

When setting up a policy, think about how long you can manage without an employee and still function adequately, Mr. Peyton said. Would you be able to find a temporary replacement or to redistribute work for six months or so, or would such an absence cause considerable upheaval in your company?

A policy of granting short leaves doesn't have to mean the end of the world. As a civil engineer at the downtown engineering firm Purdum & Jeschke, Alex Krone gets eight unpaid weeks for maternity leave -- a policy she sees as fair.

"It's never easy to come back, so whether it's eight weeks or more doesn't make a difference," said Ms. Krone, who had her first child in February 1990 and is expecting her second this February. "You know you have to do it, so it's just a matter of biting the bullet."

Other companies calculate lengths of leave differently. No set time limit for medical leave exists at Signet Bank of Maryland, a company whose work force is about 80 percent female. Instead, a leave's length is determined by individual need, with each employee's doctor determining that need. (Staff physicians are on hand to perform evaluations in the event abuse is perceived.)

Depending on their seniority, employees also receive from 80 percent to 100 percent of their salaries during the majority of their leave, according to John Sapp, personnel director for the bank. Benefits such as health insurance remain in force.

"This was planned with the idea of giving a fair amount of coverage and protection up front," said Mr. Sapp.

Payment is another consideration when you're creating a policy.

The most generous plans pay the employee's full salary for the duration of the leave; others provide a percentage. At the very least, you'll want to permit employees to accumulate sick days and to use them during their leaves. You'll also want to maintain their health and life insurance benefits.

Although you can't distinguish between men and women when creating a medical leave policy, you can make job-classification distinctions, according to Mr. Cohen. For instance, you may want to grant longer leave to management personnel than to the rank-and-file.

"Management level people do have more responsibility, they tend to put in more hours, and take on a higher stress level [than other employees], and they have to have something to make up for it," said Mr. Cohen. "Giving them better benefits is a typical exchange."

If it's feasible, you may want to consider permitting your employees to extend their leaves.

When Deborah Singer Howard, an attorney with Piper & Marbury, gave birth to her first child in 1986, she knew she'd need more than the three months provided by the company to recover from her difficult delivery. She was able to lengthen her leave by two months -- an action she also took when her second child arrived two years later.

"It was great to have that kind of flexibility," said the 34-year-old lawyer, who now works part time at the firm. "Having a child is such an important event, and you don't do it all that often."

A warning though: Companies that permit extended leave for child-care to female employees may be required to offer the same benefit to male employees, according to Dave Summers, a spokesman for the Equal Employment Opportunity Commission.

In general, it's a good idea to talk to your employees about a proposed policy before setting it in stone, said Margaret Fernandez, a spokeswoman for the EEOC. That way, you can learn about their needs and see how well your policy meets them.

Mr. Peyton added, "A good plan can be a win-win situation for the employer and the employee."

Alyssa Gabbay is a free-lance writer who often covers business issues for The Sun.

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