Disability and Maternity Leave

OK, we've got a tough issue here. My wife (CEO) and I (CFO) are part owners of a nursery in Virginia. The ee who is next in command around here is pregnant and expecting in early May (middle of Spring, of course). In a meeting yesterday, my wife asked the ee what her plans were after the child was born. We were planning to meet with my wife's parents (who are the other owners) later this week to decide what to offer the ee. She responded that she was planning to take off 12 weeks and she'd see us in August.

This really caught us off guard. We have fewer than 50 employees and are not subject to FMLA, which this employee is aware of. We have never had a pregnant employee before, besides my wife, and have never really had to deal with an employee being out for an extended period of time with an injury. My wife and I (who are salaried) took about 5 or 6 weeks when our last child was born. The ee cited this as her reason for wanting 12 weeks, because she kept the operation going while we were out. Being owners of the business though, those weren't complete weeks off. I still came in for part of 1 or 2 days per week to do payroll, pay bills, spray chemicals, etc. and my wife did some work towards the end of the period as well.

We are very fond of this employee and she does a great job for us, but we don't want to offer her something wonderful and then be stuck with it for everyone who has a short-term disability or becomes pregnant. We also expect the ee to have more children, so this will have to be repeated down the road. In my opinion, the gov't set the threshold at 50 employees because they understood that FMLA was an onerous requirement for very small businesses.

I was wondering if any other small businesses out there could let me know what they offer? We want to be fair, but not shoot ourselves in the foot.

Thanks,
jrmvt

Comments

  • 28 Comments sorted by Votes Date Added
  • You could just have her resign when the baby comes and tell her you'd really like her to come back afterwards (but don't make a binding promise to rehire). Since you're not promising anything, you don't have to promise anything to the next pregnant employee.

    If you give her something more, be careful that you treat her the same as a man who needs time off for a bad back. Otherwise, you might commit sex discrimination against the man or the woman.

    I see you're from Mechanicsville, Va. Where's that? I grew up in Va Beach.

    James Sokolowski
    HRhero.com
  • Hmmmm...the thing is, I know something about this employee's financial situation and asking her to resign without a promise to rehire would set off a panic attack on an unprecedented level. We don't wish to be that harsh. We are willing to give some time off, just not comfortable with 12 weeks.

    And Mechanicsville is just outside Richmond.

    Thanks for the input,
    jrmvt
  • [font size="1" color="#FF0000"]LAST EDITED ON 01-18-06 AT 12:53PM (CST)[/font][br][br]I try to handle most things on my own, with assistance from this forum. For something like this, though, I would RUN - not walk - with my checkbook in hand and spend a bit of time with my favorite employment law attorney.

    Since I don't really have a favorite, I would probably utilize the ECN provided by this fine publication company. The VA law firm is in Richmond - LeClair Ryan, Riverfront Plaza, East Tower, 951 East Byrd Street, Richmond, VA 23219
    804/343-4077 and David E. Nagle seems to be the guy stuck with your newsletter, if I'm not mistaken.

    You could also ask around for a reference, although if you are like us, you probably don't even know people who use labor law attorneys! I personally have ties with a Nebraska law firm after attending training sessions they did through a training organization that will not be mentioned here.

    I'm sure I don't need to tell you to tread very carefully in ways other than legally. If you refuse her what she is asking, she may very well walk, or possibly worse, stay on but become resentful. Does she come up with the 12 weeks from your six weeks times the two of you? That doesn't make much sense.

    Also, something to consider - could she be a "key" employee if you were under FMLA?

    Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:

    *notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave;
    *notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
    *offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and
    *make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.
    A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.

    [url]http://www.dol.gov/esa/regs/compliance/whd/whdfs28.htm[/url]

    I don't know if that helps or hurts, but something else to think about. I guess the point I make is even if she were eligible for FMLA, she might fall into this category and not be able to take the 12 weeks.

    I usually sign off with a "good luck!" and I can think of no one who needs it more than you. Keep us updated on how it goes - I'm really curious.
  • This is straight from "Who Moved My Cheese?".

    What would you do if you were not afraid?

    What would you do if you were not afraid of setting a precedent that is going to bite you later?

    What would you do if you were not afraid of being short handed during your growing season?

    What would you do if you were not afraid of her having more kids and expecting the same time off?

    What would you do if you weren't afraid of being sued or losing your employee or appearing insensitive?

    If you weren't afraid, wouldn't you want to try to give your employee the time off she needs for one of the most important experiences of her life? Perhaps not 12 weeks, but could you give her 8? 10? Hire some temporary help? It might not be easy but she was there for you and I think you need to be there for her. I think you won't regret it either.


  • Good advice! My wife's brother is an attorney and our next step is probably to get his recommendation on an employment attorney. I'll keep the ones you cited in mind as well. The employee may be key, but is not salaried so I don't think your reference is an option. Thanks, though.

    Again, we have no problem giving her some time off. Twelve weeks was just more than we were expecting to go. If we weren't afraid of any of that stuff or of the impact her being gone for an extended amount of time would have on the business, why wouldn't we give her a year, 2, heck, the first 18 years of the child's life? I agree that having a child is one of the most important experiences in a person's life and that parents need time with their children, but the fact is that those fears are real. Ultimately, we have a business to run and keep profitable.

    Thanks for all of the great input!
    jrmvt
  • If not mandated to give FMLA, then you are fair to treat her as an FMLA/Medical Leave ee. In our case we could give her 6 weeks for a natural birth and 8 weeks for a C-section birth. Being owners and leaders your rules anr your rules and all ees hired for you should abide by the rules and if you have set a rule up as a matter of precedents for the owners and labor force to be different so be it. I recommend you go with the 6 and 8 and let the employee know that you really do appreciate her services and she is welcome to stay on and be off without pay or with pay and that with a doctor's release she can comeback to work as soon as she can within the 6 and 8 week period. Otherwise terminate her employment and let her re-apply when she is able and ready to return.

    PORK
  • PORK, I'm kind of confused where you are heading with this. Are you suggesting that we offer her the 6 or 8 weeks unpaid, but that if she comes back to work before the 6 or 8 weeks are up with a doctors clearance, we go ahead and pay her for the time she was off? If so, I'm kind of liking that direction. Only concern is the employee down the road that breaks a leg and doctor says should be out for 5 weeks. Since 5 is less than 6, would I need to pay that employee for the whole time they were out? I'm not saying that is unacceptable, just want to know what I'm getting myself in to.

    Thanks again,
    jrmvt


  • JRMVT: No, on a personal leave of absence for up to 6 weeks for the "birth" or "broken whatever" leave without pay when they do not qualify for FMLA. In our case, our Medical Leave Policy spells out that two weeks waiting period where vacation and sick time is used, but the short disability is only awarded to those who have met their anniversay dates. If no vacation hours, no sick hours, and no work hours there will be no pay. The individual must be willing to pay for the medical coverage premiums in advance.

    Without FMLA the individual becomes medically disqualified at the end of the six (6) period.

    With FMLA 6 weeks for a normal birth and 8 weeks for a "C Section" are the periods listed in our Medical Leave Policy and pays a disability income to the female EE. After that period and her physician determines he will keep her out for whatever reason, the compensation piece STOPs, but the FMLA situation can continue for up to the total 8 weeks.

    Your company policy is key to payments of disability income. The law on FMLA covers job protection, until the Democrats get into the White House and the majority of the Senate. At which time, I believe we employers will be tagged with the FMLA & DISABILITY INCOMEm which will be under the same law.

    I hope this clarifys.

    PORK

  • >
    >With FMLA 6 weeks for a normal birth and 8 weeks
    >for a "C Section" are the periods listed in our
    >Medical Leave Policy and pays a disability
    >income to the female EE. After that period and
    >her physician determines he will keep her out
    >for whatever reason, the compensation piece
    >STOPs, but the FMLA situation can continue for
    >up to the total 8 weeks.
    >
    >PORK

    I am confused. What you are saying is that pegnancy is treated different than other illnesses and that is illegal. Please explain.



  • Treating differently, if you are writting about the 6 & 8 weeks of medical leave for a pregnancy policy which runs concurrent with FMLA, certainly it does, but only for the purpose of controlling the time off with or without "PAY". A broken bone is treated the smae as PG situation, but the physician usually has the individual back to work with in 6 weeks. One should remember that there is no law that says we must make or even have ST disability compensation. Whatever the rule is must be applied equally to all employees and we do within the paramerters set by our Medical Leave Policy.

    Should the physician keep the employee out longer than the designated time period the employee has every option to apply for a "Hardship" relief of the "no pay due status" due to the physician's orders. We have approved 100% of these cases which has been 3 in the last 6 years. We do not discriminate the application of the standards set by the written and published policy.

    Sorry for the confusion!

    PORK
  • What is going on here? Ignore the key employee information. You do not fall under FMLA.

    While the poem is nice, it ignores reality.

    How many employees do you have? That is critical becuase if you only have a few you may not even have to worry about discrimination laws.

    That aside, you want to keep her. The only way I see you doing that is talking to her. Tell her what you told us. She's a valued ee, but giving her 12 weeks is too much of a burden. Then the ball is in her court. Let her help you figure it out. If she doesn't and bitches and complains... maybe your assessment is wrong of how valuable she is.

    If you do in fact fall under the discrimination laws (fed and state) I would be ABSOLUTLEY sure that you don't give her less time off than you took.
  • This time of year, we only have about 15 employees, but that can swell up to 40 for a few months in Spring.

    Regardless of discrimination laws, we were not figuring on giving her any less time than we took - that would plainly not be fair.

    Thanks,
    jrmvt

  • First, of all, you are part-owners. The rules and perks are different for you are different. Second, you shouldn't treat pregnancy differently than any other disease. Third, what exactly do you want to offer this employee? Fourth, since you are a small company, you shouldn't have a problem with having a open discussion with this ee explaining what your concerns are.
  • Smace nailed it! At the end of the day, while we would all like to be compassioante and offer the world to our valued employees, you, and I'm quoting you, "ultimately...have a business to run and keep profitable". That's your answer. We (those of us in the business of running for-profit organizations) don't have the luxury of always sitting around, holding hands and signing Kumbaya over warm and fuzzy stuff. This employee has choices and options. If she'd rather be in an organization that will afford her liberal parenting leave, etc, she's free to pursue that angle. Somehow, I think your business offers a lot of upside that you're not telling us about. I think you're headed in the right path.

    As long as you are not violating any laws or discriminating against this employee based on past practices you've made your decision.

    I hope the Old Dominion State is well this morning. I'm from Northern Virginia (Prince william County). I knew James had some redeeming qualities, now I know why. I don't fault him though, any Tidewater Region boy who spends enough time in Brentwood is liable to go astray :)

    Good luck.

    Gene
  • I knew I would catch some flak for that post. It was pretty "feely" even for me. Maybe I shouldn't post so late at night...

    Of course you are a business but there are all kinds of ways at looking at the bottom line. Where I am located, its very difficult to find excellent ee's so I tend to lean towards really making an effort to retain talent.

    My point was that sometimes we get caught up in "what am I required to do for my ee's" and we lose sight of "what should I do" for them.

    I am assuming that the ee will be reasonable and recognize your effort to balance business needs with her desire to spend time with her new child. If the ee isn't reasonable, you likely have a problem no matter what you do.
  • I think there are 2 issues to clarify before you go back to this ee: 1) how much time should she be allowed to miss and 2) how much of that time should be paid.

    1) You need to create a basic attendance policy to help you be consistent. This helps the employees see you as being fair, and prevents you from re-thinking this stuff every time a new issue comes up. You can include enough leniency to allow for maternity leave etc., but should have a maximum leave time whereafter employment ends. (Eg: Ee is excused with no attendance points if a doctor says no work, but if ee can't return to work after 8 weeks, employment ends.)

    2) You should consider a short-term-disability policy of some sort. Even if it is something you administer in-house, just write yourself a policy that says who will get paid, for how long, and under what circumstances.

    For both policies, consider what you can live with for every other employee. It sounds like you are already thinking this.

    Once you have these outlined, go back to the ee and let her know that you want to be fair, but you also have a business to run, and here is what you are able to offer your employees, then spell it out for her. (Eg- We'll pay you 60% of regular pay as long as the doctor says you need to be off for your own medical, up to a max. 6 weeks. After that no pay. Also, we have determined that 8 weeks is the maximum amount of time we can allow for absences each year. If you can't return after 8 weeks, we will have to replace you. Or another option would be to take off 6 weeks full-time, and return part-time for the next 4 weeks.)


  • I don't think I even see in here where you are addressing this as time with or without pay? does she think she has 12 weeks of pay? Do you have any type of disability policy?
    If you have a disability policy (insured or self funded) follow it for the first part of the leave. I would just sit down and talk with her regarding the rest of the approximate 6 weeks she wants off. May be you could work something out that she works part time during this period (like on weekends when the father is able to look after the child). May be you can turn it into a win/win for both of you.
    However, you do make the decisions and need to decide what you can and want to do for her before you talk with her, but also be open to other suggestions. (If she brings up your situation, just turn it back to her and say you aren't talking about yours, but hers.)
    Good Luck. Remember good employees are hard to find.
    E Wart
  • Jrmvt and everyone:

    A couple of things about this thread I find slightly amazing. One is: several posts suggest either terminating this EE or "inviting her to resign" [and re-apply after delivery, taking her chances that her job will still be available]....the latter alternative, in my book, is still roughly equivalent to termination. Does no one else find that this amounts to terminating the EE for being pregnant....and that doing so clearly exposes the ER to a lawsuit?? (OK, it's not technically firing her for being PREGNANT...it's firing her for taking leave to give birth. But, even in VA, would a jury see much substance to this distinction?)

    Second, no one seems to be suggesting what seems to me the obvious approach, particularly since you value this EE, and want her to return to work. Why not have a conversation with her, and share w/her your concerns about her lengthy absence: she might be willing to negotiate with you and come to an arrangement that meets both your needs and hers. Before we go to discussions of termination or inviting her to resign, isn't it at least worth a conversation to explore the options?

    That said, I agree with others that it would be a good idea to put a policy in place to address this for the future.

    Best of luck.
  • You said no one suggested talking to her. I suggest you go back throught the posts and read a little more carefully. You can start with mine.
  • Thanks for all of the great info!

    We don't currently have a Short-term leave policy and there is no insurance. I don't think she is expecting for the 12 weeks to be with pay. I'm not sure she is expecting any of the 12 weeks to be with pay. I was thinking that offering to pay her for part of the time might make it easier to talk her down from 12 weeks.

    I completely agree that in the end there will need to be negotiation. I just need to understand how whatever we agree to give her will affect us for pregnancy AND non-pregnancy short term disabilities in the future. The way I see it now, we shouldn't agree to give her anything that we would have a problem giving to any other employee down the road.

    Thanks for all of the wishes of luck and I'll keep y'all posted!

    jrmvt

  • Or at least any other employee who covered for you during your pregnancy! I hope you can work out something agreeable to everyone.
  • A previous poster had recommended looking into short-term disability which is something I would definitely recommend.

    We self-funded for awhile and it was more of a headache than you want to take on (and this was prior to HIPAA).

    If you don't already, would put some type of leave policy in place which would enable people to request time off. If you have a brother-in-law in the business, he can help you with the wording.

    Like the suggestion of talking to her - perhaps there's a middle ground such as working part-time from home or easing her way back into work after the baby is born at 6 weeks (work 1 day a week, etc.)

    While you don't fall under FMLA, I would confirm this with your team member as you don't want to have (as you've noted) a precedent set or a feeling of entitlement.
  • Wanted to update everyone on this topic.

    First, thanks for all of the great replies!

    We took the advice of many of you and met with an employment attorney to draft up a short-term disability policy. We went ahead and had her review our whole employee handbook while we were at it. She was a huge help! Right now we are self-funding (mainly because the literature I had from the Duck people said they would not cover a pregnancy during the first 9 months of the contract) but I plan on putting insurance in place once we get through this spring busy season.

    We were pretty confident that if we paid for most of the six weeks, we could talk the employee down from the twelve weeks she wanted. We made her an offer, but she still insisted on the 12 weeks. She even said she would quit when she went out on maternity leave because she wouldn't feel right "using" us for those six weeks and then quitting. My wife decided that the long term effect on the business of losing the employee permanently was too great, so we established an "extended leave of absence" policy which will give the employee the extra 6 weeks, but unpaid and she will have to reimburse for insurance. She accepted this.

    I'm still convinced we bent too far on this one, but I wasn't the majority opinion. I've played more poker than my wife has and I had the distinct feeling the employee was bluffing. Anyway, all is settled now.

    Thanks again for all of the great input!
    jrmvt
  • We really appreciate the update! Sounds like you had to give a little (lot?) but hopefully it's the right decision for you. Thumbs up on getting your handbook reviewed, too. Now you can "relax" (haha) and focus on your busy season.
  • I just read this conversation you had. We usually terminate an ee who goes on maternity leave if they have no PTO (or run out) and don't qualify for FMLA. We rehire them when they are ready to come back. We would like to consider an unpaid leave policy for such things, and I see you have now put together an unpaid leave policy. If you can, will you send me the wording you used? My email address is:
    [email]kathy.demarino@londen-insurance.com[/email].
    Thanks so much!
  • You are being very generous!

    Our practice is subject to the FMLA, but we do have employees who go out for various things, mostly pregnancy, before they qualify. In this instance, we invite them to apply for a non FMLA leave of absence. On this type of leave, we advise that we will do everything we can to place employee back into a position upon their return. They can apply for up to 6 months, but there is no guarantee of re-employment.

    Usually, these employees come back as soon as they can after a doctor's release, because they are not guaranteed a position.

    This has worked out well for us.


  • Congrats! It looks like you settled things fairly well. I was wondering why I didn't see a suggestion to ask her to return part time after 8 weeks?
  • Thanks for the update. Its helpful to know how these real world HR issues actually play out.


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