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Sep02

Pregnant Worker

Our office employs less than 15 workers. The individual has been employed for 5 months and just informed us she is pregnant. Before her pregnancy, she was counseled for tardiness and work performance. Our office is very laid back, but the business requires each of us to be on duty (24 hrs) once a week, plus some weekends. The individual’s work performance has continued to suffer, as well as tardiness and counseling has continued with no positive results. Due to the reasons stated above, can we terminate? What are the guidelines regarding 15 or less employees? In addition, she has stated she will be taking 12 weeks of leave for maternity leave. Since we do not have the 50 plus employees, do we still have to approve the 12 weeks? We are located in Arizona. Thanks for your assistance.

The most notable leave law is the federal Family and Medical Leave Act (FMLA) which provides qualified employees of covered employers up to 12 workweeks of unpaid, job protected leave for specified family and medical reasons, including for childbirth and bonding time with a newborn. Covered employers under the FMLA include those who employ 50 or more full-time or part-time employees. Any employee on the payroll is counted toward the 50 employee requirement.

An employer with less than 15 employees is not required to comply with the FMLA.

The federal Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy, childbirth or related medical conditions. Under the PDA, an employer that allows temporarily disabled employees to take leave must allow an employee who is temporarily disabled due to pregnancy, childbirth or related medical conditions to do the same. Basically, an employer must treat a pregnant employee in the same manner as other temporarily disabled employees are treated in all aspects of employment.

Employers with 15 or more employees must comply with the PDA. Thus, with less than 15 employees, you’re not legally mandated to comply with the PDA either.

The Arizona Civil Rights Act makes it an unlawful employment practice to discriminate against any individual because of race, color, religion, sex, age (40 years old or older), national origin or disability. Taking adverse employment actions (i.e. termination) against an employee due to her pregnancy is a violation under the law.

This law, as well, doesn’t apply to you since only employers with 15 or more employees during 20 or more weeks of the current or preceding calendar year are covered by the act.

Thus, it looks like you’re not bound by applicable laws in this situation.

In Arizona, private-sector employees are considered at-will unless an employment contract or collective bargaining agreement states otherwise. At-will employment means either the employer or employee can terminate the employment relationship at any time with or without cause.

So, the employee can be terminated for poor performance. However, you should still be careful in doing so. Consider the impression your giving to other employees and even to the employee in question. Yes, you’ve disciplined and counseled her regarding her substandard work but the decision to terminate her only comes after she discloses her pregnancy. Your actions may create animosity towards you from other employees (specifically other female employees may feel uncomfortable disclosing their pregnancy to you) and turn the pregnant employee in to a disgruntled ex-employee. Neither consequence makes for a productive work environment or positive public perception.

Consider offering the employee a short maternity leave (6 weeks is considered average) but also make your expectations of her work performance very clear to her. Some accommodations such as time off for doctor’s appointments are reasonable but constant tardiness or the inability to complete work responsibilities shouldn’t be tolerated. HTH!

This entry was posted on Wednesday, September 2nd, 2015 at 8:07 pm and is filed under
Attendance Management, Benefits, Labor Laws, Termination, Workplace Management.
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