Pregnant Employees - Accommodation Issue

Hey Folks,

We have a TWO for One special today. Two newly hired pregnant employees, and two high-risk pregnancies.

FMLA won't apply even at the time of birth, that's how new, but it came to light last week that both employees had high-risk pregnancies, so we sent them to their physician to ensure they weren't being placed on restrictions. Unfortunately, it seems they are!!

The restrictions state the employees are not to lift more than 25lbs. The problem we have is that there are three significant essential job functions that this restriction affects.

First, the employee must lift 25-50lbs occassionally, and exert 10-25lbs of force frequently; Second, they must be able to utilize a SAMA containtment method (more on this in a minute); Third, they must be able to perform a two-person lift technique.

We manage Nursing Homes and Intermediate Care Facilities for individiuals with a diagnosis of Mental Retardation. These specific employees work in one of the MR homes and they work with clients who have aggressive behaviors. Those behaviors must be addressed, at times, using a takedown/containment technique known as SAMA. If a resident falls, they have to be able to assist the resident by lifting them up using a 2-person technique.

Unfortunately, because of the nature of our business ALL employees who are given restrictions by a physician are unable to return to work without a 100% release if they are unable to perform one of the tasks above (this should demonstrate how we try to treat everyone the same). The only accommodation that we can see would be to have other employees staffed in addition to the norm (i.e. State minimum staffing requirements) to act in these employees place. To staff additionally would create an undue hardship (i.e. increased labor costs via extra staff or overtime).

Does anyone have any insight as it relates to our situation? I'm trying to stay within the parameters of the law, but feel our situation is somewhat different than normal accommodation requests. We're concerned about liability exposure should we allow these employees to return and they or their baby were to be injured, given the nature of our industry and the clients we serve. Please advise. Thanks

sstogner
san antonio, tx

Comments

  • 4 Comments sorted by Votes Date Added
  • You need to treat these employees as you do any other employee. I.E.: Send their job descriptions to their doctors and ask if the employees are able to perform the essential duties of the job.

    Once you have documentation they can or cannot, then you move forward. If you would term or put on leave another employee in similar circumstances, then do so here. Pregnancy protection is to make sure employees do not receive LESS than other employees, not more.

    If it is not an undue hardship, and you would accomodate another employee by giving them leave (paid or unpaid) for a period of time until they can do the job, then do so here.

    Good luck!
  • Are these employees in any type of introductory period? If so, does you policy state that no type of leave applies during the introductory period? If so, you have your answer.
  • I agree with Nae, assuming that you have an existing job description (or other documentation) that specifically designates the lifting requirements as essential functions. It would also be good if you have documentation that the employees were informed of the lifting requirements prior to your learning that they were pregnant.

    Julie Athey
  • [quote=sstogner;719598]Hey Folks,

    FMLA won't apply even at the time of birth, that's how new, but it came to light last week that both employees had high-risk pregnancies, so we sent them to their physician to ensure they weren't being placed on restrictions. Unfortunately, it seems they are!!


    One of the comments (see above) in your post gave me a wee bit of heartburn.

    The [URL="http://www.eeoc.gov/laws/types/pregnancy.cfm"]Pregnancy Discrimination Act[/URL] states: An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work.

    In other words an employer can't treat pregnant women differently than they do other employees.

    For example, if you hear through the company grapevine that an employee may have a problem with his or her back, do you always require him or her to provide a fitness-for-duty statement from their doctor?

    If you consistently require any employee you hear may not be fit-for-duty to to obtain a fitness-for-duty note from their doctor, then probably nothing to worry about, If not, however, you may have a potential discrimination issue with the two pregnant women.

    You might want to seek quidance from your employment law attorney re whether or not there is a potential issue.

    Sharon
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