A woman tells her employer that she is pregnant and that her doctor has told her that she should not work, or that her work duties should be restricted, due to her pregnancy or due to associated medical conditions. Her employer tells her that it will not grant her leave, or that it will not accommodate her restrictions, due to company policy.

Is this legal? Not under New Hampshire law.

New Hampshire law extends greater protections to pregnant employees than federal law. Under federal law, employers must only give the same protections and benefits to their employees as they do to other employees afflicted with temporary disabilities. New Hampshire law goes further. New Hampshire employers must give pregnant employees leave, and must keep their jobs open for them, for so long as they experience medical conditions associated with their pregnancies that render them unable to work or that restrict their ability to perform certain job duties. The employer can only avoid liability for breach of this duty if it can prove “business necessity” to replace the pregnant employee.

An employer who violates a pregnant woman’s rights under New Hampshire law can face liability for lost wages, emotional distress, humiliation and inconvenience, pain and suffering, loss of enjoyment of life, and attorney’s fees.

If your employer has fired you due to your inability to perform some or all of your job duties due to a pregnancy-related medical condition, you should consult a New Hampshire attorney experienced in employment discrimination law. We only represent employees in employment cases so please contact us to help you. Call us at 1-800-240-1988 or fill out our online Contact Form.

In a recent case the employer hired a woman named Holms but a month later she announced she was pregnant. It was not long before the President of the company made it plain that he was very unhappy about having to find someone to fill in when Ms. Holms went out on leave to have her baby. She used the company computer to e-mail her attorney to ask about whether her treatment had created a hostile work environment, what her rights were, and what her options were.

The trial judge sided with the employer because of a policy that prohibited the use of company e-mail for personal matters and giving the employer the right to inspect “all files and messages at any time.” A court in California upheld a verdict for the company concluding that the female employee’s e-mails were not protected by attorney/client privilege because she had used a system that was open to inspection and monitoring by third parties as opposed to having sent an e-mail from her home to her lawyer.

On the other hand, the New Jersey Supreme Court has held that an employer cannot read an employee’s e-mails to her lawyer. Thus, this area of the law will depend on the judge and location of the court deciding the question. So, employees need to think twice before they use an employer’s computer to contact their lawyer—it may or may not be discoverable.

If you become pregnant, and your doctor advises you at some point during your pregnancy that you should stop working, should you worry about losing your job?

Generally, there is no reason to fret because New Hampshire law protects you.  New Hampshire law requires employers to “permit a female employee to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.”  New Hampshire law also protects pregnant women when they are ready to return to work.  “When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by the employer unless business necessity makes this impossible or unreasonable.”

Be mindful, however, of the fact that an employer must have at least 6 employees in order to be required to extend these protections to pregnant workers.