Pregnant Employee

cctsphr

Last week, an employee produced documentation from her Physician stating "patient is pregnant has lower back pain" and requested that she "not lift or carry more than 5 pounds around waist. Employee is a Security Office and all officers must wear a duty belt with several items on it - one of which is a gun. We weighed the belt and it weighs (including all the gear on it) 8.5 pounds. We sent her home and began looking in ways to eliminate the weight of the belt from her waist - e.g., remove some of the equipment carried - can't do because all is needed according to department head. Now we are looking into suspenders - apparently used by carpenters and by some military personnel - that take the weight off the mid section and place that weight on the shoulders. If that doesn't pan out, we will allow her to transfer to another position until she has the baby and then return to the officer position, but she seems to have a problem with it and wants us to let her work (without the duty belt) in an area where employees enter the building. This position is still an officer and would have to respond to any situation that might arise, altercation, scuffles, prevent unauthorized personnel from entering the building etc. There have been a couple of officers who were injured on the job and the department allowed them to work in this employee area, but not carry the gun - but wore the duty belt that had all other gear on the belt. I believe we are on firm ground with what we are doing but wanted to get input from anyone who might have had issues with pregnant employees. During her initial conversations with HR her main focus was about not carrying the gun (weighs 2.5 pounds)and that is when we provided a job description to her to give to her physician and in return received the note I referred to at the beginning. When we reviewed the physician's note with her, I pointed out that it stated she was not to "lift" as well as "carry" 5 pounds. She said - "that is not right, it is just carry". Apologize for the length of post!

ritaanz

What kind of company/facility are you that requires armed security guards? Is there a temporary position you can place her that doesn't require all the gear? Like maybe the Ladies Restroom?

rad

Sounds like you are trying to do what you can to accomodate her- the suspenders, offering to move her to another position, etc. What is she going to do when she becomes more than 5 pounds pregnant?

I did not know that a gun weighed so much.

Don D

FMLA does not require or suggest that you should offer accommodations. That's ADA. If the physician reviews the job duties/description and determines that she cannot currently perform, you should place her on FMLA full time leave. This may be the chance you're looking for to go ahead and put her on leave. Those are the duties, period and those are the job's requirements, period. If you shift her around or give her lighter duty or reassignment, you will be called upon to do that in all future instances of FMLA or illness. First thing you know, she'll be propped up in a chair at the front desk, 8.5 months pregnant, not doing much but reading the paper, and drawing full pay.

Balloonman

Don is right, and ADA only requires you to make a reasonable accomodation for disabilities. Guess what, being pregnant does not count. It is a temporary condition. Put her out on FMLA, and go from there. If she is early in her pregnancy, she and her doctor may have a change of heart if she will not have enough FMLA to cover her time gone pre and post delivery without losing her job. Suddenly she may not have as much back pain. :-)
My $0.02 worth.
DJ The Balloonman

atrimble

Our agency's personnel policy explicitly treats pregnancy as a temporary disability for which temporary ADA accommodations apply. My copy of Mandated Benefits: 2003 Compliance Guide says that (where a disability benefit is available) pregnancy should be "treated like any other disability." I will admit that I cannot find a single reference to pregnancy in the chapter that defines ADA, though.

On a different take, how do you all apply The Pregnancy Discrimination Amendment to Title VII?

Abby, HR newbie

LeeR

I'm thinking that even if you treat the pregnancy as a disability, carrying the firearm should be an essential job function that you don't have to make accomadations for. Am I right or wrong here folks.

cthr

To balloonman's response-make sure that you do not have a state pregnancy law that is more beneficial to the employee than FMLA.

cctsphr

I know that we don't have to accommodate for FMLA and yes, carrying a weapon is an essential function of the job. Before we put her out on FMLA, and on the advice of our corporate attorney, we offered her a couple of options. In a meeting with her on Wednesay we fitted the suspenders for her. With the weight of the duty belt being supported by the suspenders she believed that would work and she choose to return to work. Thanks.

Leslie

I had the exact same situation, except our security officers don't wear guns. When we tried to accommodate our female officer, and she kept coming back with doctor notifications that would squash us at every turn. So we offered her a position in another department. She fought us tooth and nail (I know the law, you have to accommodate me, etc, etc). We showed her how wrong she was. So she took the other job and suddenly came up with more doctor's notes that would cause an accommodation in the new position. She finally went on FMLA, and was unable to return in the 12-week time frame. I don't know the thought process of your employee, but ours was definitely of the opion that her challenges with her pregnancy were also ours.

cctsphr

I am sure this is not the end of the situation and yes, she seems to believe her challenges are also ours. Even to the point that if she transfers (this will be at her opotion - just like any other employee) she will more than likely make less money!

Don D

On a different take, how do you all apply The Pregnancy Discrimination Amendment to Title VII?

That question was raised above. The PDA gives certain protections to pregnant and post delivery women. It prohibits employment actions being taken based on the pregnancy, such as punitive demotion or transfer, termination, refusal to return them to work, etc. However, it does not give them any protections if those actions would have occured without the issue of the pregnancy existing. Lots of people believe; "Hey you can't do that to her, she's pregnant". Not necessarily so. You just can't take the pregnancy into consideration when making an employment decision. The question was 'How do you apply it'? Just like you apply the prohibition regarding people 40 and older.

atrimble

So you're saying that it's okay to transfer a pregnant employee into another position though she'd be taking a pay cut, because the temporary demotion isn't punitive?

You said: PDA does not give... any protections if those actions would have occured without the issue of pregnancy. Rephrased, PDA does give protection if actions occur based on pregnancy, right? So transfer and demotion (and termination) because of pregnancy IS prohibited... but only if it's punitive? Offering a pregnant EE less pay in an accommodating temporary position could be considered retaliatory or punitive by said employee, right? But forcing them to take leave (paid or unpaid, FMLA protected or not) could also be considered the same.

I guess my initial confusion comes from the interplay of all the regs. From what I've gathered, ERs are not supposed to treat pregnant EEs any differently than non-pregnant. However, since FMLA considers pregnancy a serious health condition (and some states consider it a temporary disability), we are REQUIRED to treat them differently IF they request it. How far do we HAVE to go, or CAN we go, to accommodate?

-Abby, HR newbie

Leslie

Yes, but isn't the point of PDA that you follow doctor's accommodations as much as possible while taking every precaution to protect the mother and baby? When a doctor tells me that a pregnant woman cannot perform the functions of her position due to her pregnancy, who am I to question? Now, if they can perform another available position, I'm all for it. If not, they have the same 12 weeks anyone else who qualifies for FMLA does. If they return in time without restrictions, they return to their original position.

Am I unsympathetic? What do I know? I was three weeks past due with my second and had to call in sick for my last scheduled day basically from the delivery table.

I don't mean to sound like some ancient, wizened, old woman, but the miracles of modern medicine have made pregnancy leave quite a challenge. It just appears that the percentage of women with "normal" pregnancies grows smaller and smaller. Most of our floor jobs have a physical aspect - lifting, carrying and pushing. It's almost impossible for us to accommodate pregnancies at eight weeks when those aspects are restricted for the duration of pregnancy.

Don D

>So you're saying that it's okay to transfer a
>pregnant employee into another position though
>she'd be taking a pay cut, because the temporary
>demotion isn't punitive?

NOT IF YOU DO SO BECAUSE OF PREGNANCY. AN EMPLOYER CANNOT MAKE ASSUMPTIONS ABOUT PREGNANCY AND ARBITRARILY DECIDE TO TRANSFER A PREGNANT WOMAN.

>You said: PDA does not give... any protections
>if those actions would have occured without the
>issue of pregnancy. Rephrased, PDA does give
>protection if actions occur based on pregnancy,
>right?

WHAT I MEANT BY THAT IS THE EMPLOYER IS PROHIBITED FROM ARBITRARILY USING PREGNANCY AS A BASIS FOR EMPLOYMENT ACTIONS; HOWEVER, SAY FOR EXAMPLE A REDUCTION IN FORCE WERE UNDERWAY AND HER JOB WAS TO BE ELIMINATED ALREADY OR YOU HAD A PERFORMANCE IMPROVEMENT PLAN IN MOTION WHICH SHE HAD FAILED MISERABLY AT AND YOU WERE ON THE VERGE OF TERMINATION....THOSE ACTIONS CAN TAKE PLACE.

So transfer and demotion (and
>termination) because of pregnancy IS
>prohibited... but only if it's punitive?
>Offering a pregnant EE less pay in an
>accommodating temporary position could be
>considered retaliatory or punitive by said
>employee, right? But forcing them to take leave
>(paid or unpaid, FMLA protected or not) could
>also be considered the same.

CORRECT. YOU CANNOT CONTROL WHAT OTHERS MAY VIEW AS PUNITIVE OR RETALIATORY OR DISCRIMINATORY.

In a nutshell, you should not take any employment action that the employee might view as discriminatory (based on her pregnancy) or retaliatory unless you are basing that action on the orders of her physician. FMLA does not require accommodation. If you do accommodate, you must also accommodate others. Do what you wish but do so consistently.