Subchapter C. PREGNANCY, CHILDBIRTH AND CHILDREARING
41.103. Employment benefits and security during disability.
41.104. Childrearing leave.
§ 41.101. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Disability due to pregnancy or childbirthDisabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth and recovery therefrom are, for job related purposes, temporary disabilities and should be treated as such in written and unwritten employment practices and policies.
PregnancyThe state of being in gestation. Pregnancy is a physiological process. Pregnant women, however, have a variable degree of disability on an individual basis during which time they are unable to perform their usual activities. This subchapter relates to pregnancies without regard to the marital status of the mother.
§ 41.102. Employment.
A written or unwritten employment policy or practice which excludes from employment applicants or employes because of pregnancy is in prima facie violation of the Pennsylvania Human Relations Act (43 P. S. § § 951963). The burden shifts to an employer to justify, and clearly demonstrate, the factual basis for his or her assertion that exclusion from employment because of pregnancy is warranted.
§ 41.103. Employment benefits and security during disability.
(a) Temporary disability due to pregnancy or childbirth. Written and unwritten employment practices and policies regarding job benefits and job security, including, but not limited to, commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.
(b) Permanent disability due to pregnancy or childbirth. Written and unwritten employment practices and policies regarding job benefits and job security, including, but not limited to, commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement and payment under a health or disability insurance or sick leave plan, formal or informal, shall be applied to permanent disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other permanent disabilities.
(c) Other. Mandatory maternity leave policies which require a pregnant employe to take leave automatically at a specified time during pregnancy or to remain away from work after she has recovered from her disability are in violation of the Pennsylvania Human Relations Act (43 P.S. § § 951963). An employer shall accept the determination of a pregnant employes physician regarding pregnancy-related disabilities where it accepts the medical judgment regarding other disabilities.
The provisions of this § 41.103 adopted May 16, 1975, effective May 17, 1975, 5 Pa.B. 1298.
Notes of Decisions
The extension of an employes pregnancy leave of absence because of the medical necessity of breastfeeding her child is an extension for disability or pregnancy purposes rather than for childrearing purposes, since a medical need for the physical presence of the parent is different from a psychological or emotional need of the child. Board of School Directors of Fox Chapel Area School District v. Rossetti, 387 A.2d 957 (Pa. Cmwlth. 1978).
Exclusion of pregnancy and childbirth from the coverage of an employe disability compensation plan through a policy or practice of the employer does not constitute sexual discrimination due to the terms or conditions of the plan, as exempted from the Pennsylvania Human Relations Act (43 P. S. § 955(a)), and may be the basis for an action against the employer. Lukus v. Westinghouse Electric Corp., 419 A.2d 431 (Pa. Super. 1980).
§ 41.104. Childrearing leave.
(a) Nothing in this subchapter prohibits an employment policy that permits granting of leave for purposes of childrearing beyond the period of actual disability, but the leave may not include payment of sickness or disability benefits.
(b) Should an employer maintain a written or unwritten employment policy or practice which allows employes leave for purposes of childrearing and child care, the leave shall be equally applicable to both male and female employes. The word child or children used in this section includes children by birth or adoption.
Notes of Decisions
While a school board may provide for discretionary unpaid leave, it may not exercise its discretion in a discriminatory manner, and a denial of discretionary leave to a female teacher for purposes of medically-recommended breastfeeding clearly violates this provision. Board of School Directors of Fox Chapel Area School District v. Rossetti, 411 A.2d 486 (Pa. 1979). (Dissenting Opinion).
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