Human Resource Blog

Maternity leave for a work at home employee

	Performance Management
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I have an employee who works from her home and is pregnant. She has stated that she will not be taking any maternity leave when she has her baby. Can we (as her employer) make it mandatory that she take maternity leave? Also, once she has the baby, she states that she will have a live-in babysitter. Since we have allowed her to work from her home in the past, is there any law that indicates she has to take her baby to a babysitter outside of her home office?

This is a touchy issue and you will want to tread carefully here, to avoid the appearance that you are discriminating against this employee based on her pregnancy.

An employer cannot force a worker to take maternity leave, if she is physically able to perform her job. Nor is there a law that an employee who works from home cannot have her child with or without a sitter in the same building. Rather than focus on the employee\’s life and general living arrangements, lets keep the focus where it belongs — on her work performance.

The real fear is that the employee will be doing little work, and collecting full salary. That is a genuine concern any time an employee works at home. To be candid, every employer should have a plan in place to address or monitor work performance, before agreeing to a work-from-home arrangement. Some employers monitor work performance by having employees who telecommute log in for a specific time, and stay logged in. Others define the amount of work that an employee must complete each week. Presumably you have a system in place to make sure that the employee is completing the work that you expect. That expectation need not change simply because the employee is pregnant, or a new mother.

The objective criteria for performing her job have not changed. As long as the employee meets those criteria, her home situation is really of little concern to you. Frankly, these criteria and a system for monitoring them should have been established long ago. Using childbirth as an excuse to introduce them certainly looks like discrimination based on sex or pregnancy.

As an employer, you are within your rights to require that the employee provide a certificate from her doctor showing that she is fit for duty, or physically able to work. To avoid liability, many employers begin requiring such notices from the employees doctor in the 7th or 8th month of pregnancy. If her job involves sitting at a computer, many doctors would provide that certificate right up until and soon after delivery. Some mothers take as little as 3 to 5 days off for childbirth. Again, under the Pregnancy Discrimination Act, you cannot force an employee who is physically able to work, to take leave, because she is pregnant or a new mother.

As an employer, you are certainly within your rights to introduce objective criteria for job performance, and a system to monitor it. But, ideally, these would be introduced a few months before or after childbirth, to avoid illegal discrimination. Obviously, they should apply to all employees who are working from home, not just those who are pregnant.

No employer is forced to permit employees to work from home. In a few months, if you determine that this arrangement is no longer working for you, the employer would be well within his or her rights to change the parameters of this job so that the employee no longer works from home. But dont time it to coincide with the delivery.

While your concerns may prove to be justified eventually, at this point it appears that the employer is simply assuming that the mother of a young child, or a mother with a baby in the home, will not do a good job. That is not too different from the prejudice of the 1950s, when it was assumed that women — especially mothers — were inherently unfit to hold jobs.