Human Resource Blog

Termination

I have an employee that is currently pregnant, she is constantly out and this is affecting productivity. Her productivity has been down for some time and the company productivity has also declined - can I terminate her and not have it come back as her being terminated due to pregnancy? - State is Florida

No, you probably cannot terminate this employee without repercussions, unless you are very, very careful how you do it.

There are really three separate issues here — performance , pregnancy-related absence and declining revenues. Two of those factors are legitimate reasons to terminate an employee — but the third factor (pregnancy) cannot figure in the equation in any way. Because you bring up all three factors in combination, we have the impression that one factor in your decision to terminate this employee is pregnancy — and that would be illegal discrimination.

First, the employees performance is poor. But it has been poor for some time and apparently you felt no need to address it or document discussions about it. A slick lawyer would ask *Why is this performance suddenly a problem when the employee is pregnant?* Addressing this problem now certainly presents the appearance that you are unfairly targeting this employee because she is pregnant.

Pregnancy-related absences are the second factor. If your company has 50 or more employees within 75 miles, the employee is entitled to up to 12 weeks of unpaid FMLA for pregnancy, childbirth and baby bonding. She should be notified of her FMLA rights, and cannot be penalized for these absences. If FMLA does not apply, the employee must meet your usual attendance policies. If you would allow an employee with cancer to take time off for chemotherapy, you must allow this employee the same benfit.

If the employees absences exceed your attendance policy, and you would not permit an employee with cancer or another medical disability to take this much leave, then you could terminate the employee for excessive absenteeism.

You cannot reasonably (or even legally) penalize this employee for lost productivity on the days when she is absent. In other words, if you allow the absence, you have to prorate the amount of work expected, based on her attendance. Suppose Susan is an employee at a factory who is expected to produce 50 widgets per week, or 10 per day. Susan has a pregnancy-related absence two days this week. Susan is expected to produce 30 widgets, or 3/5 of the normal amount this week. This would be true, whether the employee is exempt or hourly.

You can certainly counsel this employee on being more productive during the time she is at work, with documentation, and we would recommend that you do so.

The third factor is declining company revenue (we assume that is what you mean by declining productivity.) In that case, you could legitimately decide to eliminate a few positions, or lay off a few employees. If you decided to lay off the employees who were least productive, that would be reasonable. However, if you are not going to actually eliminate positions, you cannot single this employee out for lay off because she is pregnant. (If you truly mean that company productivity is declining…well, it is not the pregnant employees fault that others are not doing their jobs, is it?)

The bottom line is that you should do whatever you would do if this employee were not pregnant. But since her productivity has apparently been low for some time, and you did not address the issue, that probably means keeping the employee. If you make another decision, you should document the valid business reasons for it, because you may be defending that decision in court.