Getting pregnant on probation period – is my job at risk?

October 06, 2021  •  Reading Time: 8 min.

If you’ve recently started a new job, or you’re on a fixed-term contract, you might think that this means you don’t have rights in the workplace – this is not the case.

This article covers your rights when you’re pregnant and on probation period or a fixed-term contract. If you feel treated unfairly during your probation period because of your pregnancy, you have to talk to your employer or get legal advice.

pregnant woman sitting on the couch wearing headphones and working on a laptop

Be careful because the regulations for maternity leave differ from country to country.

Unlike many other countries around the world, U.S. employers are not obliged to offer their staff paid maternity leave of any duration. There are some rules surrounding paid maternity leave, varying from state to state, however.

Generally, paid maternity leave is treated as a form of benefit. Extending this benefit to workers is a decision made by each business, and therefore terms of the maternity leave will vary from company to company.

Pregnancy discrimination – what are my rights during probation period?

The law says that it is pregnancy discrimination to treat a woman unfavorably because of her pregnancy or pregnancy-related illness. All employees are protected against pregnancy and maternity discrimination from day one of their employment.

Being on probation in your workplace does not affect your maternity rights – in the U.S. you can have 12 weeks of maternity leave and return to your job – even if you have only been employed for a very short time and have a new employer.

In the U.S., parents and family are federally protected under the 1993 Family and Medical Leave Act (FMLA)[to go on maternity or family leave after the adoption or birth of a child. Under this law, legal parents are protected for up to 12 weeks of unpaid leave per year.

pregnant woman wearing a red shirt sitting at a desk at the office, holding her head and her belly, looking stressed and sad

Discrimination of pregnant employees could include:

  • selection for redundancy because of pregnancy or pregnancy-related illness during probation period
  • refusing to extend an existing contract during or after a defined probation period,
  • dismissal because of pregnancy or non-renewal of a fixed-term contract,
  • refusal of a job offer, training or promotion opportunities,
  • reduction in pay or hours,
  • pressure to resign, and
  • failure to remove risks at work and take action to protect your health and safety during pregnancy.

If you feel discriminated because of your pregnancy, dare to get legal advice.

Your rights on a fixed-term contract

In general, a temporary or fixed-term contract has no special status in law. If you are an employee, even if you are on a fixed-term contract you will have the exact same rights as a permanent employee. It doesn`t matter if you started a new job or have been with the same employer for years.

You have all the maternity, health and safety rights that every other employee holds.

U.S. employers are not required to offer paid maternity leave to their workers.

Instead, paid maternity leave is a form of benefit, so the length of maternity leave varies from company to company and from state to state. Each employer can decide on his own about the duration and conditions of maternity leave.

However, the Family and Medical Leave Act requires that U.S. employers to allow pregnant employees and mothers to take time off for the purpose of pregnancy or child rearing while holding a worker’s job and health insurance in place. There is no requirement to provide pay.

top view of woman sitting at a desk, a laptop and a cup of tea on the desk, a baby on her lap

Sick leave during pregnancy – can my employer dismiss me?

To dismiss a pregnant woman because of the pregnancy or a pregnancy-related sickness during probation period is considered discrimination and not allowed. The employer has to record any pregnancy-related illness absence separately from other sickness absence, so the pregnant woman is not disadvantaged.

The absence due to pregnancy or maternity leave must not be taken into account for redundancy or disciplinary purposes.

Furthermore, the employer should remove any risks to your health and safetyand, if necessary, make changes to your working hours or conditions or offer you suitable alternative occupation.

If you are dismissed or made redundant while you are pregnant or on maternity leave, you have some special rights. If the job still exists, and your contract is not renewed because of your pregnancy on probation period or maternity leave, the dismissal will be discriminatory and automatically unfair. A pregnant woman who is dismissed must be given reasons for her dismissal in writing.

How your employer should handle your probation during pregnancy or maternity leave?

The duration and terms of your probation period are governed by your contract of employment. You should check your contract of employment to see what it says about your probation period and whether your employer has the right to extend it under certain circumstances.

If you are absent for a part of your probation period on maternity leave, your employer should not assess you as unsatisfactory due to your absence, because it would be considered discrimination.

Instead, your employer should either:

  • measure your performance on the time you can attend work. You can see in your contract if your employer needs to do anything to confirm you passed your probation period.
  • consider exercising a contractual right to extend your probation period or invite you to agree to an extension for a period equivalent to your absence. If you are going to take a few weeks of maternity leave, your employer might try to arrange an extension of your probationary period by that number of weeks.. This will give you a fair chance to prove yourself and gives your employer the opportunity to make a reasonable assessment of your performance.

In case the employer fails to offer an extension, depending on the circumstances you may be able to bring a discrimination claim.

word cloud in red, orange and brown, showing words like parental leave, maternity, paid, family care, and everything related to that matter

Maternity Care: What else do you have to know

In the U.S., the FMLA protects American workers who go on maternity or family leave. Two other Federal laws, the Pregnancy Discrimination Act and the Patient Protection and Affordable Care Act, provide additional protection for parents when a child is born.

Maternity care includes:

  • Outpatient services, such as prenatal and postnatal doctor visits, gestational diabetes screenings, lab studies, medications, etc.
  • Inpatient services, such as hospitalization, physician fees, etc.
  • Newborn baby care
  • Lactation counseling and breast-pump rental

These laws have improved the accessibility and quality of care for mothers and families before and after childbirth.

To be eligible for FMLA maternity leave protections, employees must work for an employer with more than 50 employees within a 75-mile radius. They must also have worked 1250 hours in the 12 months prior to the start of the leave.

blue paper with big black letters spelling out I'm on Maternity Leave on a pinboard with red pin

FAQ

What happens if I get pregnant in my probation period?

As an employee you are protected from pregnancy discrimination. If you get pregnant during your probation period, your employer should not treat you unfairly due to your pregnancy or childbirth.

Can I get fired for being pregnant during probation?

No, if you became pregnant during your probation, you cannot be dismissed due to pregnancy or maternity leave. So, while you can be fired during probation if you are not performing as expected, your employer is not allowed to dismiss you during probation or any other period for unlawful reasons.

When should I stop working?

Most women can physically handle their usual workload up until about 32 to 34 weeks of pregnancy. When you suffer from pregnancy related sickness, you can leave earlier. Around the last trimester, many women change their focus from the job to being a new mother, what can affect the decision on when to stop working.

When do I have to announce my pregnancy at work?

As a pregnant employee you must tell your employer that you’re pregnant at least 15 weeks before your due date; this is known as notification week. You will need some time for antenatal appointments and your employer has to deal with maternity leave and maybe a parental leave replacement.

Are American workers entitled to paid maternity leave?

No, because parental leave is considered a benefit provided by employers. The Family and Medical Leave Act ensures that workers can take time off without losing their jobs or health insurance, but there’s no obligation for employers to provide pay.

Can I dismiss a pregnant employee?

Yes, but only if the dismissal is not related to the employee’s pregnancy or a pregnancy-related illness, the maternity leave or sex. If you dismiss an employee who is pregnant you must provide her with a written explanation about why she was dismissed. If the employee has worked for at least two years in your company, you must prove there is a fair reason for the dismissal and that you followed a fair procedure.

How can I ensure that a pregnant woman or woman on maternity leave does not suffer any disadvantage?

First of all, the employer has to consider how the pregnant employee might be disadvantaged because of her pregnancy or maternity leave and try to remove any possible disadvantage. 
For example:
– Pregnancy related illness may affect the performance of the
pregnant employee and should be discounted
– If there is to be an interview, try to hold this at a time to suit
the employee and not too close to the birth
– If an interview process is required, make sure they are given
sufficient notice

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