Revamping Job

Rockie

We have a pregnant RN in a position where we could possibly use an LPN or even a medical assistant. This purely a cost reduction move. We could possibly move her to another area, but she would be exposed to radiation which could ultimately harm the fetus. We would choose not to put her in this possible situation of danger. I don't see where changing the status of a position could be construed as discriminatory in any way, whether the job holder is pregnant or not. Could we safely terminate this individual and replace the position with a lesser position?

awilliams

Rockie- I am going to try and answer your question, but first let me rephrase it and make sure that I am responding to it correctly. You want to eliminate a RN position and replace it with a LPN position. The person who currently fills this position is pregnant. The only available position to transfer her to is one that might expose her fetus to radiation. You want to know if it is legal to just terminate her and replace her with a LPN or medical assistant.

I suggest you analyze the situation step-by-step. As you know, you must ignore all protected classes when making a job decision. This includes pregnancy. If your company would downsize this position regardless of who was currently performing the job, you are not discriminating. However, since the employee is a pregnant woman, you want to make sure you have all of your ducks in a row and can clearly show that you have a legitimate business reason for downsizing her position.

The second step of the analysis is what to do with the employee once her position is downsized. Again, you must treat this employee as you would all other employees, regardless of her pregnancy. What would you do for a non-pregnant employee? Offer her the reduced job" Transfer her? Whatever you would do for a non-pregnant employee is what you need to do for this employee.

That brings us to the transfer. Although you may feel it is your place to decide whether a job is safe or not, it really is the employee's place. The employee and her doctors should be the one to decide if the transferred position is safe for her. Perhaps there is an accommodation that you can make in the short-term so that she will not be exposed to radiation. Regardless, if you would offer this position to any other employee, you need to offer it to her.

Good Luck!

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

Rockie

Thanks. You were very helpful. I thought I was on the right track, but it's always good to get a legal point of view!

Rockie

One more thing I thought of. Would it be okay to let her know that she will be exposed to potentially hazardous situations and that we need for her doctor to assess the situation and give us a clearance on whether he feels it is safe for her to work under these conditions? Of course, we wouldn't require this of non-pregnant employees, but I feel that a pregnant employee should be aware of what the potential risks may be to her unborn child? Is this discrimination or just good common sense?

Thanks.

awilliams

Rockie-

I do not want to stand in the shoes of your legal counsel, who can evaluate your situation with more expertise. I suggest you contact your counsel for a precise opinion. Having said that, my gut reaction is that you certainly should apprise the pregnant employee of the potential hazards of the new position. I also think it would be fine to require a doctor to sign off on allowing her to perform the job duties that may be hazardous. You would require an employee with a history of back problems to get a doctor's approval before transferring him a job that requires heavy lifting. If the doctor says it is OK, go ahead with the transfer. You may want to formulate a plan in case the doctor says no. If you have given other employees "light duty" assignments in the past, as an accommodation, you may have to do that in this situation, too.

Good luck!
Anne Williams
Attorney Editor