Pregnant Employee
cctsphr
27 Posts
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!
Comments
I did not know that a gun weighed so much.
My $0.02 worth.
DJ The Balloonman
On a different take, how do you all apply The Pregnancy Discrimination Amendment to Title VII?
Abby, HR newbie
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.
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
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.
>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.