Human Resource Blog

Unable to perform duties

We are a small (3 person) production shop in AL. All the employees were hired with the understanding that they would be required to be on their feet most of the day, use ladders, some chemicals, heavy lifting, etc. One employee is now pregnant and obviously cannot climb ladders, be on her feet, use chemicals or lift heavy items. I have tried to accomadate her by giving her as many “sit down” jobs as I can. Unfortunately, I am running out of things for her to do. Can I cut her hours without being penalized? She can no longer do what she was hired for. I cannot justify paying her to stand around or sit and do nothing.

Yes, you can and  should cut this employees hours — and probably should have never changed her duties in the first place.

Most pregnant employees are able to continue their normal duties throughout their pregnancy. Many, many women including hairdressers and retail clerks work throughout their pregnancy in jobs that require them to be on their feet all day. Any chemical that is safe for a non-pregnant employee is probably safe for a pregnant employee to use.

There is no law that requires you to make accommodations for a pregnant employee, and you should not do so. Pregnancy is not a disability under ADA. So you should really never have altered this employees job duties. Either she can do the job you are paying her for, or she cannot.

(If you had 50 or more employees within 75 miles, the employee would be entitled to unpaid time off under FMLA, but not to a change in job duties or a job accommodation.)

You have no responsibility to continue to pay this employee when she cannot do her job. Since the employee is telling you that she cannot perform her usual duties, she needs to bring a note from her doctor stating what restrictions there are (if any) on her activities. You can send a list of her usual job duties including climbing ladders, the chemicals she is using, etc.

You will assign the employee to do the portion of her work that her doctor has okayed. Obviously, if you only have 20 hours of work for her that conforms to those restrictions, then you will only schedule her (and pay her) for 20 hours. It could even be that you will have to not schedule the employee at all, because she physically cannot perform the job duties. This is absolutely legal.

Many women with physically demanding jobs must take unpaid maternity leave beginning in the 8th month.

If the employee has a release from her doctor to perform all her usual duties, then you can schedule her for a full work week and expect her to perform like any other employee. But you should definitely not be paying this employee to sit around and do nothing.