Pregnant Employee

Toshia10

I have an employee who has been with the company for about 1 week shy of 90 days. This employee recently found out that she was pregnant and returned with a medical excuse for her several days of absence, citing possible miscarriage. The employee returned to work and worked for one and a half days before going home again stating that she was having pains. The employee went home Tuesday at lunch and has not returned to work as of today, Thursday. The employee had her young daughter call in for her and leave a voicemail stating that she was ill. We called the employee this afternoon to ask her to bring in a doctor's release since she has been out for three days. The employee stated that she believes that her pains and possible miscarriage are being caused due to the stairs in our building. Unfortunately, we do not have any other accomodations for the emplyees to get to the office besides stairs. Management is wanting to let the employee go for performance issues. I do not have much experience with the Pregnancy Disability Act and was wondering if the same relues apply as FMLA (1250 hours and 1 yr service). We do not want to create an unlawful termination. Any help out there? I would really appreciate it!

HR36

Hi Toshia:

The PDA is different from FMLA. The PDA applies to employers with 15 or more employees. The PDA  prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. The basic principle behind the PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. The employee is protected against such practices as being fired or refused a job or promotion because she is pregnant. She cannot be forced to go on leave as long as she can still work, and if other employees who take disability leave are entitled to get their jobs back, so are women who have been unable to work because of pregnancy. In your case, it is tricky . . .if her doctor says that the stairs are the problem, and you would usually accommodate a disabled employee with problems with the stairs, you may have to work with her. For the performance issues, was there good, written documentation of a problem BEFORE this employee had medical problems/knew she was pregnant? If not, it is very risky to take disciplinary action right now. Basically, you have to treat this employee the same way that you would any other disabled employee.

Toshia10

Thanks for your contribution! Unfortunately, there is no previous written dosumentation to the employee in regards to her performance. The new issue today is that she has failed to call and report her absence to work. Our policy states that 1 no call, no show within your first 90 days is immediate termination. Too risky? Appreciate some input!

HR36

OK - I personally would not pursue a performance issue without prior documentation. I would, however treat her exactly the same way you would treat any other employee with a temporary disability. If you (and your STD insurer) pursue medical documentation of the disability -- do it, in writing, delivered by registered/certified mail, return receipt requested. Give a a date certain by which you want to receive the documentation and (if it is your policy or practice) tell her failure to provide medical documentation can result in termination. For the no-show issue, it is a little iffy since her absence was "reported" the day before and inability to return to work under the circumstances may be established. I would pursue the medical documentation, if it is in line with your polilcy/practice for other disabled employees.

Toshia10

HR36--That is the route that I was wanting to take as well--but the owner has decided to go with termination for no call/no show. This is their first encounter with a person with disabilities and we do not have an STD in our benefits package. I had the same suggestion to the owner for obtaining medical documentation, but they have chose not to take this route. I advised them differently, but with them being the owners I guess that they make the final call. I really appreciate your input and time!