As an employer, you may not fully understand your responsibility when one of your employees tells you that they are pregnant. I have often heard employers state “we don’t have maternity leave for our employees”. However, not having a policy regarding “maternity leave”, does not mean that the employer does not have an obligation to its pregnant employees. Given the fact that states are passing their own pregnancy discrimination and accommodation laws, it is even more imperative that employers understand the laws governing pregnancy and related factors.
What should I say when my employee tells me they are pregnant?
While your first instinct may be to ask:
“How long will you be out after the baby is born?”, or
“How much longer do we have until you leave?”, or
“Will you be able to get your work done while your are pregnant?”
Those are not appropriate responses. “Congratulations” would be more appropriate. You should also advise the employee to contact Human Resources to discuss any protected leaves that they may be eligible for. There is no need to ask additional questions or request more information at that time. Doing so could result in you receiving information that you may not have otherwise received, but that you may be required to act on in the future.
What if my employee says that they need modified duties or schedule?
Employers should not make changes to a pregnant employees duties or schedule unless the employee requests it. When a pregnant employee does request modified duties or schedule, there are several factors that will determine your next step. If you are a private-sector employer with more than 50 employees you may have obligations under the Family and Medical Leave Act (FMLA). In order to qualify for FMLA the employee must meet certain requirements. Please refer to the US Department of Labor Fact Sheet for more information. There are also several states that require leave and or accommodations regardless of eligibility for FMLA leave. For more information on state specific requirements, please contact your state Department of Labor, legal counsel, or Human Resources department. If you determine that you are required to provide an accommodation to your employee, in most instances the next step would be to request medical documentation. In the event that the employee is requesting modified duties, it is a good practice to provide the employee with a copy of their job description to provide to the doctor. When evaluating requests for accommodation, you should note that as the employer you are not entitled to receive information regarding the specific diagnosis or condition. As the employer you should only review information regarding the duration and/or frequency of the leave needed and the proposed accommodation to the duties based on the job description. When determining how the company will respond to the request from the doctor, caution should be used if the employer decides not to allow the leave or accommodation and legal counsel should be consulted.
Managing this process may seem like a daunting task. However, it is the responsibility of the employee to request the leave or accommodation and to provide the documentation to support it. This should take some of the uncertainty out of the process.
The moral of the story is, having a pregnant employee is going to happen to us all. It does not have to be a complicated or difficult situation. Unless the employee has complications related to the pregnancy, it should be business as usual. Do not ask any questions that could invite information that you will then be required to act on. Understand your responsibilities if your employee does require an accommodation. And finally do not make any employment decisions based on the employees pregnancy.
Written by: Kimberly Prescott, SPHR, Principal Consultant at Prescott HR Consulting