Pregnant and newly hired

MaryJ · January 2005

One of our department heads just hired a young lady who is 7 months pregnant. The department head was unaware of this at the time of hire. Of course the young lady did not divulge the information either. I realize she can't be terminated for pregnancy but can she be terminated for absenteeism? She already has been unable to attend orientation due to illness.
If she stays, must we give her a three month pregnancy leave although she will not qualify for FMLA due to length of service?

JF12 · January 2005

At my old position we had the same problem. We terminated the employee because she was there for less than a month and had not completed her introductory period and did not qualify for FMLA.

SMace · January 2005

Don't factor the pregnancy into your decisions. If she does not comply with established company policy (attendance, FMLA, etc.) discipline as necessary. If you have made exceptions for others in the past, it would be wise to make the exceptions for her.

marc · January 2005

If I read your post devoid of any reference to pregnancy, I would tell you to just administer your policy with respect to absenteeism. Treat her like you would any similarly situated EE.

You get into trouble when you begin to treat a pregnant EE different than others.

Half HR · February 2005

It may depend on your state. I'm in Washington, and we have pregnancy disability protections that have no requirements for length of employment or hours worked. There isn't any federal equivalent.

Half HR

SMace · February 2005

Yes there is a federal equivalent. It's called the Pregnancy Discrimination Act of 1978. It was an amendment to Title VII.

Don D · February 2005

[font size="1" color="#FF0000"]LAST EDITED ON 02-01-05 AT 01:47PM (CST)[/font][br][br]The Pregnancy Discrimination Act is not a federal equivalent of state pregnancy-specific laws. Some states have laws that grant special protection to a pregnant employee. The PDA makes it unlawful for an employer to discriminate against an employee because of pregnancy. It does not extend to them any special benefits.

Terminating an employee (who by the way happened to be pregnant, blind, obese and African American) for violating attendance policies is not illegal.

SMace · February 2005

I'm not sure where the Food and Drug Administration fits in this. She stated that WA has a state law that provides pregnancy disability protections. That is exactly what the PDA does and it is a federal law that covers all states.

I read her post to say there is no federal law that governs pregnancy discrimination, when in fact there is.

Thanks for the lesson on terminating pregnant employees, but I don't need it. If you see in my post where I said you can't fire her, let me know.

Don D · February 2005

See if you can borrow a midol somewhere down the hall. Are you always so easily ruffled?

SMace · February 2005

Such maturity from a seasoned HR professional. I'm impressed. If you can't respond to the facts move on to the Har-Har section.

System · February 2005

"Pregnancy disability protections" could mean one of two things. Is pregnancy in your state considered a disability or does this refer to complications arising from pregnancy that qualify it as a disability?

Golf · February 2005

I am in Washington too and you mentioned a pregnancy disability protection, I am looking for the "law" that addresses this. Is there a set amount of time that the employer is required to give or is it case by case?

SMace · February 2005

Here is a summary of the law. Looks pretty darn close to the summary of the PDA that I read.

Pregnancy Leave

Washington law regarding pregnancy and childbirth leave, located at Wash. Admin. Code § 162.30.020, applies only to state employees. Under this section, an employer must provide a woman a leave of absence for the period of time that she is sick or temporarily disabled because of pregnancy or childbirth. Employers must treat a woman on pregnancy-related leave the same as other employees on leave for sickness or other temporary disabilities. For example:

¨ If an employer provides paid leave for sickness or other temporary disabilities, the employer should provide paid leave for pregnancy-related sickness or disabilities.

¨ If the uniform policy requires a physician’s statement to verify the leave period, a physician’s statement may be required to verify the leave period relating to pregnancy or childbirth.

¨ If the uniform policy permits the retention and accrual of benefits such as seniority, retirement, and pension rights during the leave period for other temporary disabilities, the policy must also permit it during leave for pregnancy-related temporary disabilities.

¨ If the employer permits extensions of leave time (for example, use of vacation or leave without pay) for sickness or other temporary disabilities, the employer should permit extensions for pregnancy-related sickness or disabilities.

Disparate Impact

There may be circumstances when the application of the employer’s general leave policy to pregnancy or childbirth will not afford equal opportunity for women and men. One circumstance would be where the employer allows no leave for any sickness or other disability by any employee or so little leave time that a pregnant woman must terminate employment. Because such a leave policy has a disparate impact on women, it is an unfair practice unless the policy is justified by business necessity.

Reinstatement

An employer must allow a woman to return to the same job, or a similar job with at least the same pay, if she has taken a leave of absence only for the actual period of disability relating to pregnancy or childbirth. Refusal to do so must be justified by adequate facts concerning business necessity.

Rockie · February 2005

More than likely the law will look at this as you having terminated the individual in violation of the Pregnancy Discrimination Act of 1978.

cthr · February 2005

I agree with Don. The PDA treats pregnancy as a disablity and says that you have to treat pregnancy the same as any other disability. So if you have a policy that states any employee who misses XX amount of time regardless of the reason is terminated and you apply it consistently, you are not in violation of the PDA. It is not the federal equivalent of a state law. CT has CFEPA which covers employers with 3 or more employees and is much more employee friendly. If the person goes out on disability in month 1 of thier pregnancy and exhausts all 16 weeks of their CFMLA you still have to hold their job as long as the doctor says they are disabled.

System · February 2005

I think you misread or misunderstand Don's post. Normal pregnancy is not a disability. There is no requirement to make accomodations for a pregnant employee. The PDA requires employers to treat pregnant employees the SAME as any other employee. There are no special arrangements required. The employee may not discriminate against the pregnant employee BECAUSE they are pregnant.

Don D · February 2005

Again, state laws and the PDA have little in common, textually, other than discrimination prohibitions and consistency in policy application. You will not find the PDA to require that a post partum employee be returned to the same job or that she be allowed a specific period of absence or that she be allowed, in fact, any absence; only that pregnancy must be considered as any other temporary disability or illness in the administration of the company's leave of absence policy. State specific policies and laws do sometimes grant special privilege and particular protections to pregnant and post-pregnant employees. In that regard, such laws are similar to state workers compensation or UI laws and procedures and have no nationwide application or impact.

cthr · February 2005

>I think you misread or misunderstand Don's post.
> Normal pregnancy is not a disability. There
>is no requirement to make accomodations for a
>pregnant employee. The PDA requires employers
>to treat pregnant employees the SAME as any
>other employee. There are no special
>arrangements required. The employee may not
>discriminate against the pregnant employee
>BECAUSE they are pregnant.

I did not misread his post. He stated that the PDA was not the federal equivalent of state law. That is correct. The PDA is an anti discrimination provision that analogizes pregnancy to a physical or medical condition. It requires only that pregnancy be treated the same as other physical conditions with similar employment effects. When the woman goes out to have the baby she is considered disabled and unable to work. I did not say that they require a special arrangement.

If you had read my post closely, you would see that I mentioned state law in CT, to show that the PDA was not the equivalent of state law in all cases.

Judith · February 2005

Knowing the law is basic but you need to know what your company policies and practices are. If you have a policy that allows for a leave of absence even for new employees you will need to follow that even if there is no law covering it. If you have no policy but your practice in the past has been to allow new employees leave then you will have to allow it.

Pregnant and newly hired

Comments