Human Resource Blog

failure to notify employer

I have an employee, holds a half time position, deliver a baby, she never notified any one of the fact that she was expecting a baby. Is this lack of notification a performance issue?

This employee could have handled the situation better, but the absence is the problem — not the disagnosis. Is the employees failure to notify you that she is pregnant a performance issue? No, it is not. Pregnancy is a medical diagnosis. The employee is not required to share her medical diagnosis with the employer, any more than she would be required to tell you that she is HIV positive or has genital warts.

However, the employees attendance, or failure to notify you that she would be taking FMLA, may well be a performance issue. Presumably, the employee took at least a few days off for the baby\’s birth. An employer can expect a pregnant employee to follow the same reporting procedures as any other employee. If you require that employees call one hour before the scheduled shift to report an absence, then the employee should have followed this procedure for any days that she missed due to childbirth. If she did not, the failure to report properly is a performance issue — not the pregnancy.

Since you are aware that the employee has a condition (recent childbirth) that could result in her being physically unable to work, and she has been absent, you are entitled to require that the employee provide a doctor\’s release to return to work. While most doctors recommend that a new mother wait 4 to 6 weeks before returning to work, some will release a woman to return to a (non-strenuous) job within a few days after delivery.

All of this is assuming that the young mother took a few sick days from work and intends to return immediately. If the employee intends to take unpaid, job-protected leave under FMLA, current regulations require that the employee give the employer advance notice whenever possible. For a full-term pregnancy, the employee is expected to give the employer 30 days notice. For example, if the employees due date is April 23, she may tell the employer that she plans to take FMLA beginning on April 22. Other mothers will want to work as long as possible, and may tell the employer that they will take FMLA beginning about April 23.

However, it is not always possible for the employee to give advance notice of FMLA. If the baby was a month or more premature, then the mother may have gone into labor before she could give the employer notice that she would take FMLA. This alone is not reason to deny FMLA.