Grounds for Pregnancy Rights in North Carolina
Recognizing the significance of pregnancy and childbearing for women and their families, North Carolina imposes certain legal protections for pregnant women in the workplace. The federal Pregnancy Discrimination Act (PDA), passed in 1978 as an amendment to Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating "on the basis of pregnancy, childbirth, or related medical conditions." Title VII prohibits discrimination because of sex, and the PDA includes discrimination "because of pregnancy," which encompasses "pregnancy-related medical conditions."
The PDA covers employers that are covered by Title VII, which includes employers with 15 or more employees. Situations that arise under the PDA include when an employer has policies that treat pregnant women differently than similarly-situated non-pregnant employees, such as an employer’s attendance policy that treats pregnancy like a disability of a non-pregnant employee. Any question of whether an employer is covered under the PDA will almost certainly include a question of whether the employee is covered under the PDA because of the straightforward nature of the coverage.
Any laws or regulations that are more protective than the PDA are not preempted by the PDA. In this case, North Carolina’s Pregnancy Discrimination Law (PDL) is more protective than the PDA. Under the PDA, if an employer provides light duty work to any employees with temporary disabilities, it must offer pregnant employees the option of light duty work. Under the PDL, North Carolina law requires employers to provide light duty work to all pregnant employees, whether or not other temporarily-disabled employees are offered light duty work.
North Carolina’s PDL is found in G.S. ยง 95-28.3 , which makes it "unlawful for an employer to terminate the employment of, or discriminate against, a woman affected by pregnancy because of her condition as a pregnant woman." Under the PDL, employers must provide up to four months (120 days) of "reasonable" leave, with or without pay, for an employee who is "affected by pregnancy." The PDL also requires employers to offer breastfeeding breaks during the year following a child’s birth, unless doing so would place an "undue hardship" on an employer. Pregnant women who seek light duty assignments for pregnancy-related conditions are entitled to the same treatment as other temporarily disabled employees under the PDL.
Of particular note under the PDL is what the law considers being "affected by pregnancy" as opposed to being "disabled." According to the state Equal Employment Commission, under the PDL, an employee is "affected by" pregnancy "when her pregnancy produces limitations upon her ability to do assigned work." Furthermore, being "disabled" is not a requirement of the PDL. Thus, the employee need not be discharged or placed on leave to be "affected by" pregnancy, according to the EEC. Instead, a pregnant employee may be "affected by" pregnancy if her pregnancy inhibits her ability to perform functions of her job, she is needed for training, or there are safety concerns.
In sum, the PDA and PDL relate to an employer’s treatment of a pregnant applicant or employee through all stages of employment, including the application process, hiring, leave, and light duty considerations. The PDA and PDL also encourage pregnant employees to have a role in determining what is "reasonable" regarding use of the protections afforded under North Carolina law.
Pregnancy, Employment, and Your Rights
In North Carolina, the law prohibits discrimination based on sex, which includes pregnancy discrimination. This means that an employer cannot fire or discriminate against a pregnant employee because of her pregnancy. This basic protection has been in federal and state law for many years. There are also some additional, newer protections provided by state law.
For instance, under the Pregnancy Discrimination Act, your employer is obligated to treat you the same as any other temporarily disabled employee and make reasonable accommodations to your work environment. Furthermore, the North Carolina Pregnancy Accommodation Act provides that employers with 15 to 49 employees must provide a reasonable accommodation to a pregnant employee. So even if your employer only has 15 employees, it cannot discriminate against you on account of your pregnancy.
Paid maternity leave is not required in either North Carolina or federal law. The Family Medical Leave Act ("FMLA") permits employees to take up to twelve weeks of unpaid leave to care for a newborn child or if an employee becomes seriously ill and needs to take care of a child, spouse, or parent who is also seriously ill. Under some circumstances, FMLA may apply prior to the birth of a child so that the mother may have her doctor certify her inability to work because of a pregnancy related condition.
In practical terms, however, even though FMLA applies to employers with 50 or more employees, employers with 15 to 49 employees may be subject to certain requirements under FMLA if one of its employees works for its larger related companies that are located within 75 miles of each other.
North Carolina law does require some paid maternity benefits. Under this law, employees are entitled to up to four months of leave without losing their jobs after the birth of a child.
Getting Treatment if You Are Pregnant
If a woman is uninsured and would like to qualify for Medicaid coverage of pregnancy-related services, she must be at or below 196% of the federal poverty level at time of application and meet other requirements. Under North Carolina law, if she does not qualify for Medicaid, then she might qualify for substantial assistance with the cost of healthcare through the health insurance marketplace. The state’s "health exchange" operates through the Affordable Care Act, which allows her to make an application for coverage with the federal government. Applications can be completed online, by phone, or in-person with an insurance agent or navigator. Available financial assistance includes the ability to discount monthly premium payments and limit out-of-pocket costs.
An uninsured woman has options when it comes to healthcare during pregnancy. The federally qualified health center program offers sliding scale fees for women who do not have health coverage. Federally qualified centers are private-not-for-profit organizations that provide comprehensive healthcare, including prenatal care, HIV/AIDS testing and treatment, mental health services, oral health care and substance abuse treatment.
The Women, Infants and Children (WIC) program provides supplemental foods, education, healthcare referrals and nutrition counseling, such as breastfeeding counseling. Though women are not required to have insurance to qualify for WIC, many clinics are co-located in communities where they operate or with other health care centers. Some health centers help with referrals for additional care and payment of overhead cost for those health services.
Based upon income, uninsured pregnant women may qualify for the Carolina Access Program, which is available to women receiving Medicaid or who have low income. The program provides access to obstetrical care, nutritional counseling and prescription drugs, as well as assistance with transportation and case management.
Parental Leave and Pregnancy
When it comes to parental leave, North Carolina businesses are subject to laws at both the state and federal level. The state laws are very different from the requirements of the FMLA, so it is important to understand the variation in requirements, along with which laws might or might not be applicable to your particular business.
For businesses with 12 or more employees, the FMLA requires eligibility for leave of up to 12 weeks. Leave needs to be taken within a 12-month period. The FMLA allows leave for the following:
For eligible employees, the leave requirement under the FMLA applies, regardless of whether your business operates in North Carolina or not. Businesses with less than 12 employees are exempt.
In most cases, the North Carolina Parental Leave Act (NCPLA) applies in addition to the requirements of the FMLA. This law does not apply to all businesses, so it is critical to understand how many employees you have working and the minimum amount of time they must work with you. Note that, while North Carolina has a statute on parental leave, the requirements can vary by municipality.
If your business qualifies under the NCPLA, you must offer leave benefits for the birth, adoption or foster care placement of a minor child. Employees must be granted up to four months of leave for this purpose. Each employee also is entitled to their equivalent of 60 days of paid leave or vacation time to be used for any reason.
However, parental leave under the NCPLA is only available to parents if they have been with your company for at least 12 months with workplaces within North Carolina. These parents also should have worked for at least 1,250 hours during the previous 12 months. The act defines "parents" as biological fathers and mothers, foster parents or those who have adopted or expect to adopt minor children. In addition, the act does not include parents who are not biologically or legally related to the child.
The primary requirement of the NCPLA is to provide unpaid parental leave for a maximum of four consecutively. Time can be reduced if an employee chooses to use paid sick or vacation time during pregnancy. This means employees do not necessarily need to take their full four months of nonpaid leave to cover periods of pregnancy, even if it still falls under one pregnancy or adoption period.
An important exception to note is that, while a woman is not entitled to take her entire four-month leave period, the four-month period can be considered a reasonable accommodation. This means she is not necessarily entitled to any additional leave beyond four months.
When it comes to using temporary workers, these substitutes are also entitled to parental leave under the NCPLA. This means that, if you use temporary workers, you cannot simply rotate them to cover the leave of workers taking parental leave. If you have 12 or more temporary employees on site, they also have the same rights as permanent employees under the FMLA.
The Rights of Pregnant Students
Pregnant students and pregnancy related conditions that substantially limit activities in North Carolina are protected under the federal Rehabilitation Act and Americans With Disabilities Act (ADA) as well as the North Carolina Persons With Disabilities Protection Act. These laws prohibit discrimination against students based on a disability in public elementary, secondary and postsecondary education programs and activities, including charter schools, trade and vocational schools, adult education programs and technical and career schools. The law does not extend protections to religious or military schools.
Under Section 504 and the ADA, the school board must make reasonable modifications to its practices, policies or procedures when the modifications are necessary to avoid discrimination against students with disabilities .
The NCPDPA requires that public school units make reasonable adjustments in classroom rules, taking into account the special needs of students with disabilities. Reasonable adjustments under the NCPDPA include, but are not limited to, the following: North Carolina Schools may not discriminate against pregnant students, and are required to develop and implement policies regarding reasonable accommodations for pregnant students. These policies must include the following: In an individual’s 504 Plan, the school must explain any adjustments it has made to classroom rules, analyze whether the adjustments apply to non-disabled students, and, if so, show how the adjustments do not provide the student with an unfair advantage.
North Carolina Laws Regarding Surrogacy and Adoption
Adoption considerations and surrogacy laws can be complicated and difficult areas of the law for a pregnant woman to negotiate in North Carolina. This is further complicated if the pregnant woman has been traumatized by abuse in the past.
As a general rule, an adoption begins when the biological parents consent and ends with the entry of an adoption decree in the state where the adoption is sought to be completed. In North Carolina, a living step-parent’s consent is required to adopt a child. Any other party who desires to adopt a child must first obtain court approval to adopt. The prospective adoptive parent(s) must file a petition with the court to adopt the child. A social worker will evaluate the home environment of the prospective adoptive parents. If the court grants the petition, the adoption is finalized.
Non-standard adoptions exist outside the typical framework. Situations may involve strangers adopting a child temporarily until he/she can return to a biological family member. Stepparents may also want to adopt the stepsiblings of their stepchildren. First cousins may adopt another cousin or uncle/nephew and aunt/niece adoptions also fit into non-standard categories. A "name adoption" occurs when someone outside the family adopts another family member for the sole purpose of changing the adoption. If a couple has no plans to have another child but wants to experience the love and joy of parenting, "inter-family adoption" is an excellent option.
All pregnancy laws in North Carolina are affected by laws in the area of surrogacy, also known as third-party reproduction, for women who are pregnant or considering becoming pregnant. It’s important to understand that surrogacy laws only pertain to biological parents who use a surrogate and/or sperm donor and/or egg donor. In general, there are three types of surrogacy: traditional, gestational and host surrogacy.
Traditional surrogacy entails the insemination of a surrogate with a male sperm. This is typically used by single men or couples who cannot produce healthy sperm of their own.
Gestational surrogacy involves the placement of a fertilized embryo inside the uterus of a surrogate who possesses a healthy egg of her own and a uterus to sustain the pregnancy. The sperm of the biological father (or a sperm donor) may be used to fertilize the egg. In some cases, the sperm donor undergoes an IVF process. If the intended mother is unable to provide her own eggs, a donor may be used.
Host surrogacy involves the carrier receiving a donor embryo implanted in her uterus with no biological relation to the child. In cases of embryo freezing, embryos may be placed in the carrier’s uterus months or years later.
Resources for Legal Help
Several resources are available to provide legal support to pregnant women in North Carolina. For example, the Charlotte Center for Legal Advocacy offers legal clinics that provide free, brief consultations with an attorney one time only. The clinics are walk-in only. No appointment is necessary, but those who arrive at the clinic early may be prioritized. At the clinic , attorneys will help you complete your intake and screen you for brief advice or limited-scope representation. Applications are taken on a first-come, first-served basis. Clinics are held every Thursday from 1:00 – 4:00 p.m. The Charlotte Center for Legal Advocacy also offers workshops to help individuals navigate the legal system in North Carolina. Finally, the Charlotte Center for Legal Advocacy maintains a list of additional legal resources throughout the state.