Reader writes: Tom, our new hire CSR is pregnant. I hired her to help with deliveries, customer service and sales. Turns out she is about six weeks along and has a bad case of morning sickness. Looks like making deliveries is out for her at this point. She works in a part time capacity. Do you have any guidelines for this situation? What did I get myself into NOW? Thanks
Tom: the short answer is you gotta drop a dime on your local employment attorney as this could be full of traps as there are variations from state to state. However, here are my thoughts and general observation for you.
Long answer: Okay, again, specifically I don’t know. This is a question for your employment attorney in your state as I said but IN GENERAL you have a couple things working for you and a couple things working against you.
Essentially a person needs to be able to do the job they are hired to do. It’s called a Bona Fide Occupational Qualification (reason men don’t have to be hired to play women’s parts in moves for instance and a press operator has to be able to operate the press).
Now IF they become temporarily unable to do that job and you are unable or do not wish (subject to state law) to accommodate them in another job, then you USUALLY do not have to employ them for that period for which they are unable to perform (rules vary here depending on size of business and here we are talking here about businesses with less than 15 employees).
Also there could possibly be some issues relating to how you accomodate a worker. Again, I do not believe you have to move them into a position you do not have, but that probably has more to do with state law in your case.
As for her being released until the pregnancy is over, that question relates to YOUR leave of absence policy and their right of return.
The Equal Employment Opportunties website (http://www.eeoc.gov/facts/fs-preg.html) says about those subject to the law, “If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.”
“Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.”
“Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.”
Since I know your guidelines follow my general guide – a leave of absence is time off from work with a right to return ONLY IF a job is available and at a pay rate commensurate with that specific job and, further, at a job that is open at that time.
Absent a real policy in this area, you assume only the employer’s rights as prescribed by state and federal law that apply in your situation.
Issue here is if you treat other illnesses differently. This comes from the old days when there were two types of Leaves: pregnancy leave and other leave.
Under a pregnancy leave, the presumption was the female would not return to work while a heart attack victim under the general leave of absence policy would.
In fact, in Pennsylvania once I found an owner who was pondering letting his pregnant worker go while he had previously not only brought back the boy press operator after a heart attack but paid him for the six weeks he was off as well.
California, as well as everywhere in Canada has specific laws covering this I understand.
That type of action is what precipitated the federal Pregnancy Discrimination Act which modified the Civil Rights Act of 1964 (again applying federally to those with more than 15 employees for 26 or more weeks per year). So you cannot discriminate against a female (specifically treat them differently than any other illness or injury) because they are temporarily pregnant.
On the other hand, you are small enough (fewer than 15 employees) that this specific requirement does not apply.
What you have working against you, possibly, is state law or regulation. That’s where your attorney comes into play. Kentucky, for instance, has mirror legislation (basically same as federal) to the Civil Rights Act of 1964 (Equal Employment Opportunity) which covers employers with five employees or more. I do not think your state does, but I’m no lawyer so spend money to see what the requirements are in your state.
Regardless, YOUR issue isn’t whether she is pregnant or not, but the fact that she can temporarily no longer perform her job (side issue is she doesn’t make it to work on time but I’m presuming here).
There also could easily be some provision of state law that would require something else of you in this situation (as in California as I mentioned), so, again, contact your employment attorney as soon as possible.
That’s it from here. Let me know if you need more. And say hey to your child-bride for me.
Tom Crouser
