Human Resource Blog

You are right to be concerned. OSHA standards require that employers provide rest rooms, and that employees be permitted to use them. So any restriction on bath room breaks is likely to become an issue for OSHA.

The best way to handle this problem is to address the real issue — this employees productivity. The problem is not that she is in the bathroom too often, its that she is not getting enough work done. That is a legitimate concern for any employer. Ideally, you should have already established minimum standards for productivity and those standards should be objective. In a factory, for example, the employee would be responsible for producing 47 widgets per hour. If you do not already have objective performance standards, its time to establish some.

Employees can legitimately be disciplined and even terminated for not meeting productivity standards.

If employees are not aware of the productivity standards, inform everyone in writing now. Then start disciplining anyone who does not meet them. To be fair, its probably better to review productivity on a weekly, rather than a daily, basis. If the problem employee wants to keep her job, she will very quickly figure out what she needs to do to increase productivity. And employee morale should increase immediately, becasue the other employees will see that you are addressing this problem.

Just one note: If by any chance the problem employee approaches you and explains that she is pregnant or has another physical condition that causes her to use the rest room frequently, you will want to proceed with caution. In some cases, allowing frequent bathroom breaks would be considered a reasonable accommodation under ADA (as long as she was meeting productivity standards.) And the employee does not have to use the words reasonable accommodation in making the request.

The best practice in the HR field would be to sit both of them down in the same room together, with you, and discuss it. Point out that you have observed hostility and you want to clear the air, once and for all. Allow each employee a specific length of time to vent, but require that they do so in a respectful way, without name-calling or swearing.

In a perfect world, you would learn that the hostility arises from a simple misunderstanding, everyone would shake hands and come out friends. In the real HR world, this hardly ever happens. After each employee has had her say, it is your turn. Point out that you do not expect these two to become best friends, but regardless of their personal feelings, they need to be civil and cooperative with each other at work. They are both on your team, and you expect them to work together.

Also remind them that any hostile behavior is a performance issue. If Trina slams down the phone after a conversation with Margaret, Trina is not doing her job properly and can be disciplined or terminated. (If Margaret insulted Trina first, Margaret can also be disciplined or terminated.) Each employee is responsible for her own behavior, even if she is provoked. Give examples of any hostile behavior that you find unacceptable. You cannot control how employees feel, you can expect them to control how they act. Ask each for agreement in solving this problem and being civil to each other.

Hopefully, this will solve the problem — but follow-up is absolutely crucial. The very first time you observe one of them doing something that is hostile, you need to pull that employee (alone) into your office and address it as a performance issue. If you do so, the hostile behavior will stop. If you ignore a few problems, it will continue. In rare cases, one employee will not be able to stop her hostile behavior, and you will have to let her go. (Sometimes, both employees.)

This is a touchy issue and you will want to tread carefully here, to avoid the appearance that you are discriminating against this employee based on her pregnancy.

An employer cannot force a worker to take maternity leave, if she is physically able to perform her job. Nor is there a law that an employee who works from home cannot have her child with or without a sitter in the same building. Rather than focus on the employee\’s life and general living arrangements, lets keep the focus where it belongs — on her work performance.

The real fear is that the employee will be doing little work, and collecting full salary. That is a genuine concern any time an employee works at home. To be candid, every employer should have a plan in place to address or monitor work performance, before agreeing to a work-from-home arrangement. Some employers monitor work performance by having employees who telecommute log in for a specific time, and stay logged in. Others define the amount of work that an employee must complete each week. Presumably you have a system in place to make sure that the employee is completing the work that you expect. That expectation need not change simply because the employee is pregnant, or a new mother.

The objective criteria for performing her job have not changed. As long as the employee meets those criteria, her home situation is really of little concern to you. Frankly, these criteria and a system for monitoring them should have been established long ago. Using childbirth as an excuse to introduce them certainly looks like discrimination based on sex or pregnancy.

As an employer, you are within your rights to require that the employee provide a certificate from her doctor showing that she is fit for duty, or physically able to work. To avoid liability, many employers begin requiring such notices from the employees doctor in the 7th or 8th month of pregnancy. If her job involves sitting at a computer, many doctors would provide that certificate right up until and soon after delivery. Some mothers take as little as 3 to 5 days off for childbirth. Again, under the Pregnancy Discrimination Act, you cannot force an employee who is physically able to work, to take leave, because she is pregnant or a new mother.

As an employer, you are certainly within your rights to introduce objective criteria for job performance, and a system to monitor it. But, ideally, these would be introduced a few months before or after childbirth, to avoid illegal discrimination. Obviously, they should apply to all employees who are working from home, not just those who are pregnant.

No employer is forced to permit employees to work from home. In a few months, if you determine that this arrangement is no longer working for you, the employer would be well within his or her rights to change the parameters of this job so that the employee no longer works from home. But dont time it to coincide with the delivery.

While your concerns may prove to be justified eventually, at this point it appears that the employer is simply assuming that the mother of a young child, or a mother with a baby in the home, will not do a good job. That is not too different from the prejudice of the 1950s, when it was assumed that women — especially mothers — were inherently unfit to hold jobs.

Yes, in some cases an employee can be discharged for severe violations of company policy while on short term disability. Suppose while John is on disability, his supervisor finds a gun in John\’s desk. John admits bringing the gun to work, in violation of company policy. It would be entirely reasonable for the employer to terminate John, even though he is on short term disability. Or, suppose John is an accountant on short term disability. While he is gone, an audit reveals that John has been embezzeling money from the company. Again, John can be discharged.

To put it another way, an employee who commits misconduct and then goes on short term disability doesn\’t get a free pass on the misconduct.

In some cases an employer can\’t terminate a worker BECAUSE they are on short term disability, especially if they are covered by FMLA or ADA. If the company has known of the employees misconduct for quite some time, and chooses not to discipline the employee until he or she is on short term disability, that may present the appearance of discrimination based on medical condition, which could be illegal under ADA.

An employee on short term disability can be subject to any disciplinary or employment action that would have taken place, had the employee not been on short term disability. This answer applies to almost all employment at will states, and in a more limited fashion, to many others.

This is a touchy issue, because California places more restrictions on the employment at will doctrine than any other state. Generally, California employers who terminate a worker for a performance issue must show that they made every effort to rectify the problem, including repeated warnings and retraining. In some cases, that still may not be enough. For that reason, if you genuinely intend not to replace this person, it might be wiser to lay him or her off. The safest course would be to consult with an attorney before taking any action.