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Sep28

Pregnant employee not able to perform job duties

We are a company of 450+employees in Maryland. We have an employee who is pregnant that performs manual labor on jobsites (steamfitter/welder) and has stated that she is unable to perform her full job duties due to pregnancy.

1)  Her supervisor has asked if he is able to let her go without putting the company at risk.

2) She has also missed some days of work due to illness, some pregnancy related and some not (I was just made aware of this yesterday).

3) My first inclination is to inform her of FMLA eligibility so that if she is not let go we can start tracking her 12 weeks and also make the supervisor aware that it is only for pregnancy related illness that she is covered for. So missing days because of a cold is not protected and they could discipline her for excessive absences.

4) However, if she is not able to perform her duties, it is my understanding that we are not required to make reasonable accommodations and could let her go for not being able to do the job she was hired for. Is this correct?

5) I believe they have already made some accommodations for her, such as not having her weld any longer. But from my conversation with her supervisor yesterday it sounds as if she is expecting more and more accommodations as time goes on.

6) Thank you for your advice. I am constantly checking this blog for various topics I am not sure of. It is a great resource!

Thanks for the kind words! We are always here to answer questions from HR pros.

There are several issues in your post, so we have numbered them for easy reference. The important points to keep in mind are that pregnancy is always a serious health condition under FMLA, but it is almost never a permanent disability under ADA. You are not required to change the job duties for a pregnant woman.

It is important to understand the difference between pregnancy and pregnancy disability. Most healthy women with normal pregnancies are able to continue all the physical work activities they engaged in before pregnancy, at least until the 7th month. Some work until the moment they go into labor. When a woman who is expecting is physically unable to work, that is pregnancy disability. Most women are physically unable to work at all for 4 to 6 weeks after childbirth, called childbirth disability. Some are unable to work for a month or many months prior to delivery, especially if there are complications. This is pregnancy disability.

First, rather than rely on the employees report, you should require that she supply a fitness-for-duty release from her doctor stating that the employee can continue to work. (You can request this because you have reason to believe the employee may be partially or completely unfit to work. You cannot routinely require that all pregnant women present a fitness-for-duty release, even for a physically demanding job. However, anytime an employer has reason to believe that an employee may be unfit to work, the employer can request a release.) In this case, the employees requests for accommodations have raised that issue.

If you allow this employee to work even one day without such a release, you create huge liability for the company. If she suffers complications or loses the baby due to you allowing her to work, the company could be liable. It could even become a workers comp case.

Presumably, the employees doctor will issue her a conditional release to return to work. For example, it might state that she cannot be exposed to high temperatures, or that she cannot lift more than 50 lbs. You are correct that there is no law that requires you to accommodate these restrictions — and you should not. If you have another job available that the employee is qualified to do, with these restrictions, then you can transfer her to that job and reduce her pay accordingly. (For example, you could transfer her to file clerk temporarily, and pay her the hourly rate for a file clerk.) If you have no suitable work that this employee is physically able to do, then you are not required to pay her or provide her with employment.

It may be beneficial for you to provide the doctor with a list of job duties, such as lifting 50 lbs. being exposed to temperatures of 200 degrees and molten metal, arc welding, pipe fitting, etc. This functions as a menu for the doctor to choose from, because he does not know the activities required in every job. Keep in mind that the doctors release tells you what physical limitations the employee has — it does not dictate her job duties to you. If the employee is not able to lift more than 20 lbs., and every job you have requires heavy lifting, the employee is not able to perform the duties of any available job. She has a temporary disability and must be put on FMLA.

1) No, terminating the employee should not be your first reaction. If she can show proof from her doctor that she is unable to perform her job duties, she is entitled to up to 12 weeks of continuous FMLA for pregnancy disability. If she is unable to return to work after the 12 weeks, then you can terminate her.

2) You are completely correct. Any pregnancy-related absence is counted as part of her 12 weeks of FMLA. Absences for other reasons are subject to your usual attendance policies. By law you must allow this employee to take unpaid intermittent FMLA for prenatal appointments.

3) Firing the employee would probably be illegal pregnancy discrimination. You need to treat her as you would any other employee with a temporary medical problem, like a back injury or a broken arm. We would suggest that you sit down with the employee and explain her rights under FMLA to her. Also let her know that the company is not required to and will not make accommodations for this temporary condition. (The ADA requires reasonable accommodations, but only for employees with permanent disabilities. Pregnancy is not permanent.)  You can and should treat non-pregnancy-related absences as you would usually address such absences.

4) Not exactly. There is no law that you must make accommodations for this temporary condition. However, you also cannot terminate this employee. If she is unable to perform a portion of her job duties,  and you have no other open position that she can fill at this time, she is on pregnancy disability.

The key to understanding pregnancy disability is to substitute the words *broken arm* or *broken leg* for the word *pregnancy.* You must treat this employee exactly as you would if she was unable to perform some of her work duties due to a broken arm.

If you have an opening for a pipefitter who does not weld, and this employee is physically able to complete all the duties of that position, assigning her to that job for the duration of her pregancy might be a good solution. If at some point the pregnant employee is no longer able to fulfil the duties of that job, then you will need to put her on continuous FMLA for the serious health condition of pregnancy.

If you do not have an opening for a pipefitter, then there is no need for you to create one to accommodate this employee. If all of your other pipefitters also weld, you should not rearrange the job duties to accommodate this employee. If someone else is having to do a significant portion of her job for her, like doing all the heavy lifting or all the welding, then you are not required to keep her on the job.

If you have no work that this employee can physically do, you need to put her on continuous FMLA for 12 weeks. If she is unable to return to work after those 12 weeks, you can terminate her. Even if she is only 4 months pregnant and you know the disability will last longer than 12 weeks, you have to go through this process.

If your company offers short-term disability benefits or insurance, she may qualify during this period. You can still terminate her after 12 weeks, even if she is collecting short-term disability.

Also be aware of the PDA, the federal Pregnancy Discrimination Act. This law requires that an employer treat an employee on pregnancy disability or childbirth disability the same as an employee with any other medical problem. If you would allow an employee with a broken leg, a heart attack or a stroke to take 16 weeks  of unpaid leave and then return to his job, you must allow this employee to do so. If you have continued group health insurance coverage in the past for an employee who was out for 26 weeks recovering from a stroke, you must do so for the employee on pregnancy disability. If you allowed those employees to return to their jobs, you must do so for an employee on pregnancy and childbirth disability.

5) You need to reverse these accommodations unless you would make them for an employee with a broken arm. Also have a frank discussion with the employee about the fact that her job duties will not be altered because she happens to be pregnant. If she is unable to complete her job duties, you may assign her to a lower-paying job if you have a position open. If not, she will be on FMLA. It is not fair to the other employees to expect her to collect full wages for doing partial work.

6) You are very welcome! This is a complex topic, so feel free to post additional questions.

Since less than 10% of welders are female, we are going to intuit that you may not have a formal maternity leave policy in place. If you do, this employee should receive the same benefits that you would give a pregnant payroll clerk — no more and no less.

If you do not have a formal pregnancy leave policy, this would be an excellent time to create one. By law, you cannot offer a pregnant employee fewer benefits than the proverbial employee with the broken arm, heart attack or stroke. However, you can offer pregnant employees more benefits than employees who are absent for other medical conditions. Now is a great time to sit down and determine what you would like pregnancy and childbirth leave to look like, at your company. You might want to offer pregnant employees up to 6 months of unpaid, job-protected leave, with continued health insurance coverage. This might be much simplier than worrying about whether the employee is injuring herself or her baby. Some companies grant such extended pregnancy leave only on a case-by-case basis. (You may already have a policy in place for extended medical leave.)

If you do implement such a policy, just be sure to call it pregnancy leave and not maternity leave. If you offer leave for new mothers, generally you must also offer the same leave for new fathers, or face a lawsuit for sex discrimination.

 

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This entry was posted on Tuesday, September 28th, 2010 at 9:29 am and is filed under
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3 Responses to “Pregnant employee not able to perform job duties”

  1. » Pregnant employee not able to perform job duties Human Resource Blog « Human Resources 123 Says:

    [...] this link: » Pregnant employee not able to perform job duties Human Resource Blog Comments [...]

  2. Ian Mondrow Says:

    Very insightful article. Your writing clearly demonstrates the legal precautions as well as the possible actions an employer could take. Pregnancy can be a sensitive topic, especially if the supervisor is male but I commend your advice.

  3. Caitlin Says:

    Good point, Ian! It can be hard for a male employer or HR pro to deal with a pregnant employee. In the post above, it sounds like the men on the job will have to squelch a commendable urge to protect this pregnant woman and cater to her. Again, treating this like a broken arm or broken leg is the key. Having a female supervisor, HR pro or even admin involved in the discussions can also mitigate the feeling that this is a war between the sexes. HTH, and thanks for reading the blogs!~ Caitlin
    PS I made a few changes to the answer, so you might want to check it again.

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