Pregnancy Issue

Crout

We have an employee who has been here less than 4 months, still on probation, with little or no sick and vacation time on the books. It has just come to my attention that over the last month the EE has been calling in sick, citing difficulties with her pregnancy. Normally any EE with her attendance record would fail probation and be terminated. Because she is on Probation, the EE cannot request an unpaid leave, nor does she want to. She has stated that she must work as long as she can before she delivers. Our problem is that we need a full-time employee in that job. If we terminate, would we be in violation of the Pregnancy Act? My thanks to you all, and my best wishes for a safe and happy New Year.

HRinFL

You would not be in violation under the Act as long as you have the documentation to support your claim that other ees in their probationary period with the same pattern of attendance are termed. However, pregnancy is funny, because while it is its own protected category under Title VII, there is opinion out there that it also qualifies (in some cases) as a disability (which I think is not consistent with the intent of the ADA, but that is another argument).

Why is she unable to work? Does the job require standing, repetitive lifting, etc.? If so, is there a reasonable accommodation you could make that would allow the ee to continue working? Have there been other ees with impairments/disabilities that were inside the probationary period that were not termed? Do you have a policy that allows associates to take time off that do not qualify for FMLA? Is this available to ees that are in the probationary period? I think the direction you head depends on the comparables and statistics you are able to find.

Crout

Her job is to do case management for children and families. She is in the office a great deal, but must also go into the community to meet with families. She has not requested any modification, she has simply taken what would normally be considered an excessive number of days off for someone who is still on probation. Yes, we have in the past terminated employees on probation who demonstrated similar issues.

System

Pregnancy is covered under the Civil Rights Act. You may treat a pregnant employee as any other employee regarding absences, sick leave etc. I don't believe you have any further obligations to this employee even though she calls in saying that she is having 'difficulties.' That would not be covered under the ADA.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 12-30-04 AT 12:47PM (CST)[/font][br][br]Only if you are found to have based your decision on the fact that she was pregnant would you be in violation of a pregnancy discrimination statute.

(edit) Looks as if all three of us answered seconds apart, like delivering triplets. I would add that you should never, ever have a policy of making work accommodations for pregnant employees based on lifting inability or anything else unless your policy is so broad as to cover any and all other types of illnesses by any and all other employees.

HRinFL

I agree with The Don that preganancy should not be given special attention for accommodation. There are many women that do not have any difficulty with performing job tasks during the term of their pregnancy. There are some that have complications that do not require special accommodation and, therefore; should not receive any additional consideration. For those with more severe complications, they usually receive restrictions from the doctor. As The Don was implying, these should be reviewed, and if not a harship or unreasonable, be given the same consideration as any other request. I apologize if my previous posting was unclear on this issue.

Crout

No, your post was clear and very helpful, as were the rest. What bothers me about this particular situation is that, but for the fact that she is on Probation we would not be talking about termination, and the Pregnancy Act does not recognize length of employment as a mtigating factor.

Don D

All you have to do is proceed as you would if she were a man and make your business decisions based on your policies, procedures and past practices, period, without regard to the ifs-and-and buts of pregnancy. There are none.