When an employee tells you she’s pregnant ideally your first response would be: “Congratulations!” It’s a happy time for the mother-to-be even though you may be thinking: “Oh _____, what do I do now?”
After reality sets in, questions then come up like:
- How long is a pregnancy leave of absence?
- Am I even required to provide a leave of absence?
- Do I have to hold her job and if so, for how long?
- How do I fill her position?
- What if she refuses to do her job, like take x-rays?
Ideally you, along with your pregnant employee and the rest of your staff would easily be able to answer these questions. Why? Because you’ve dealt with it before: 1) you have a policy manual in place that spells it all out, 2) you have all of the necessary forms for proper documentation, 3) you have us as a resource, and 4) you’ve kept up with the changes in federal and state requirements regarding pregnancy.
While it may be impossible to anticipate all possible iterations, we do know how an employer “should” handle each situation for a safe and positive outcome. Failure to do so can become a big, screaming consequence.
The Laws in Play
Depending upon your state and the number of employees you have, employers have to take into consideration both federal and state requirements that govern pregnancy-related leaves.
The federal law is called the Family and Medical Leave Act (FMLA). This law applies to employers with 50 or more employees within a 75-mile radius. Your state may also have a state-equivalent FMLA law with employee thresholds that are either higher or lower and generally offer the same types of leave, with few differences, as FMLA.
Many states also implement separate Pregnancy Disability Leave laws that usually apply to employers with fewer than 50 employees. These state-specific Pregnancy Disability Leave laws outline the length of leave available, any eligibility criteria, as well as many other aspects to the leave.
Employers should be clear on which laws are applicable and what rules need to be followed in order to ensure compliance when dealing with a pregnant employee asking for leave.
Step One: Notification of Pregnancy
It is important to recognize that no law requires an employee to inform the employer of pregnancy whether during the recruiting process or after. At some point, though, the information does have to get out to the employer and, when it does, there are administrative aspects that should be completed:
- Ask the employee to read the policy applicable to pregnancy-related leaves from your Personnel Policy Manual to establish expectations and outline certain parameters of the leave.
- For planning and scheduling purposes, determine the following: 1) estimated date of delivery to help pinpoint when leave will begin and 2) the employee’s intentions following the leave, i.e. return to work or not.
- Give the employee a copy of the Leave of Absence Application Form (call us for a sample copy of our form #427) for her to complete.
- Have the employee sign the Health Hazards during Pregnancy Release Letter (call us for a sample copy of our form #413). NOTE: If the employee refuses to sign this document, do not force the issue. It is essentially a letter of informed consent. This document is not required by law; employees should not suffer any adverse action as a result of refusing to sign this form.
Once the above has been done, you and your employee can continue to work together provided there are no further job-related bumps in the road that impede you in some way.
Step Two (maybe): Employee Refuses a Job Duty
The desire to remove certain job duties from pregnant employees is not driven solely by employees. We get calls from employers all the time asking, all on their own, how they should modify the employee’s job to accommodate the pregnancy. Although it is natural to want to protect the mother and baby and, therefore, want to volunteer to change the employee’s job or move her to a less risky position in the business, you should not do this unless specifically requested. This act of compassion can carry legal ramifications.
When the employee states that she does not want to perform certain duties (i.e. heavy lifting, taking x-rays, etc.), you will, under certain conditions, have the burden of attempting to accommodate such requests. Here is the process for determining accommodation:
- When the employee states that she cannot or will not perform certain duties, the employer is not under an obligation to immediately do as the employee asks. The employer should express a desire to accommodate such requests and, in doing so, must also consider the needs of the business. Then the employer should inform the employee that she must obtain written documentation from her treating physician about any restrictions that s/he has placed on her due to the pregnancy or pregnancy-related conditions.
- The employee should be provided with her up-to-date job description that is compliant with the Americans with Disabilities Act (i.e. specifically lists the “essential functions” of her job) for her treating physician to use as guidance for determining whether or not restrictions should be placed on her. This way the physician can use objective criteria based on real facts about the employee’s job and not have to rely on just her word when making this decision.
- Once an employer has been provided with written documentation of the restrictions, s/he must begin what is called a “good faith interactive process” with the pregnant employee. This is essentially an exchange between the employer and the employee about the restrictions and how to best accommodate them. Ideally, the accommodation will meet the employee’s requirements as well as not create undue hardship on the employer. Possible types of accommodation include, but are not limited to, shorter work hours, fewer days, elimination of specific duties, lifting or reaching requirements, voluntary transfer to another position, etc. It’s important to note that the accommodation need not be the one most favored by the employee. The employer can choose which accommodation will be provided. NOTE: All decisions about restrictions, the employee’s job, and/or accommodations must be based on essential job functions only.
- It’s possible that the only accommodations available would result in “undue hardship” for the employer or business and, therefore, cannot be provided. “Undue hardship” means an action requiring significant difficulty or expense. The factors to be considered include, the nature and cost of the accommodation, the overall financial resources of the facility, the number of persons employed at the facility, the effect on expenses and resources, or the impact the accommodation has on the overall operation of the business. Although this is a valid, legal concept, it is often difficult to prove if challenged, so be very cautious if you are going to apply this to your situation.
- Options for when accommodation cannot be met include termination of employment or putting the employee on an unpaid leave of absence for the duration of her pregnancy until she is able to return after the birth. Both are fraught with potential legal consequences; only proceed in this direction after consulting with professionals on your specific situation.
Step Two/Three: Employee Takes Leave
Be sure the employee is informed of the following:
- The designated times she is to check in regarding her intention to return to work
- That she must provide notification immediately if she decides not to return to work
- The conditions upon which she can request an extension and that approval may be at your discretion
- That if she does not return at the designated time and has not requested and been approved for an extension, it will be determined that she resigned from her position
- How her health insurance, if applicable, will be handled during the leave.
Communication of the above can be achieved by providing the Pregnancy Disability Leave Letter (call us for a sample copy of our form #414).
Step Three/Four: Employee Returns to Work
Assuming nothing has occurred during the leave that prevents the employee from returning to work (i.e. employee decides not to or doesn’t return, business necessity prevents the employer from having a position available, etc.), the employee should return on the day that was planned. At that time, she should present a Medical Release to Work Form (call us for a sample of our form #428), or one that is the equivalent, that has been completed by her treating physician before resuming her job duties.
In the workplace, women who are pregnant constitute a highly protected class of individuals. As such, improper handling of pregnancy can lead to labor board complaints and/or lawsuits, which, in turn, can be financially detrimental to the business and stressful for everyone involved. It is important to know what laws and requirements apply to you and successfully manage your obligations.