Human Resource Blog

What are some maternity leave options when short-term disability and FMLA are not used?

A woman in our office recently had a baby and needs time off for maternity leave. She told a few people that she was not going on short-term disability because it was at a reduced pay. The company has less than 50 employees so she doesn’t qualify for FMLA. The employee handbook states a “leave of absence” could be granted by the CEO/President for up to one month without pay (must be in writing; however, not in place). The woman is taking 8-10 weeks off and only has 6-7 weeks of combined vacation/sick time. She took her company laptop home so she could “work from home” during her leave. We have a policy that if you are sick and plan to turn in sick time, you cannot work. If we deplete her vacation and sick time and she needs time off with the baby when she returns, will it be without pay?

Several people are questioning what is going on. It is obvious concessions are being made on behalf of the employee. One employee brought up the section in the handbook that states that 5 consecutive days of unapproved time off will be deemed as the employee terminating employment and a demand letter will go out stating the assumed intent with a date of termination. Does this situation fall into that category? How do we explain the situation so it doesn’t sound like favoritism? If another employee needs time off to care for a child (or related issue) are we obligated to also allow them to work from home and still pay at 100% of their wages (granted they have a laptop and can do so). We are also paying full benefits during the time off she is taking for maternity, including accruing vacation/sick time. I am concerned we are stepping into grey territory and creating a huge liability for the company.

Another issue is that we have managers that limit the amount of sick time hours an employee can take depending on why the time is needed. I think this violates the employee’s right to make their own decisions regarding their healthcare. I don’t think we want to be in the business of diagnosing illnesses or recommending how much time is needed for an illness. Please advise.

You are right to be concerned about the maternity leave. Frankly, this looks to us like favoritism, and yes, you are creating a precedent where you will have to offer the same benefits to pregnant workers and possibly to others who are on disability, as well. It appears that this employee is dictating the terms of her leave to you, instead of the other way around, which is unfortunate.

Hindsight is 20/20, but you should probably have explored the options with this employee before she had the baby. At a minimum, you should require that she present a release from her doctor, that she is physically able to work at this point. Most doctors will not give a release for a new mother to go back to work for 4 to 6 weeks. If she has no release, her options would be to collect short term disability, or take the time unpaid. You are under no obligation to premit this employee to work from home. If you decide to permit it, you need to set clear parameters on the amount of work that will be accomplished, and an accurate way to track it.

Apparently you have decided to allow this employee to use her 6 to 7 weeks of paid leave. Yes, any time off after that will be unpaid. Most companies require that paid leave be approved in advance, and it is not clear that this leave is.

Yes, this situation (and every stiuation, really) falls under the umbrella of your policy that any employee who misses 5 consecutive days of work has terminated employment. Sending a demand letter to the employee will at least open the door to a conversation on what you arrangements you are willing to make.  We would suggest allowing her to take 6 weeks of paid leave, and perhaps work from home for 2 weeks.

You are also correct that managers should not dictate the amount of sick time that an employee can use based on their diagnosis. For one thing, employees should not be required to share their diagnosis with the manager — that could very well be discrimination based on disability. Either way, as long as the employee has a doctor’s note for the illness, that should be sufficient. It is up to the doctor — not the manager — to decide how much time the employee needs off.