Off the cuff answer.

sdlreno · April 2001

We have an employee who has created problems with co-workers by talking behind their backs and belittling them to others. She is due to leave for maternity reasons the end of April. It was our intention to replace her at that time as we are not large enough nor has she worked long enough to qualify for FLMA. She was conversing with my partner about non work related matters and brought up her resuming her job after she has the baby. Rather than telling her at that time we were going to replace her, he said that there wasn't going to be problem. I think that we now have a problem in trying to replace as was originally planned. Thanks

Tricia · April 2001

Whether or not this employee is eligible for FMLA, the maternity leave can considered under ADA. Does your company have a maternity leave policy? I know that in the past any problem dealing with pregnancy (including morning sickness) was protected under ADA. I would find out through your state's department of labor what your possible options may be. It would be wise to thoroughly investigate the possiblities.

System · April 2001

I have to disagree to a signicant extnet. Physiological conditions, whicn includes pregnancy, that are not the result of adisorder are not considered disabilities under federal ADA. Several courts have held that pregnancy and related medical conditions, absent unusual circumsntances, are not within the intent of ADA. What you may need to look at is fedral and state law regarding pregnancy leave. For example, the federal Pregnancy Disability Act requires the applicable employer to treat a pregnancy leave in the same manner that it treats any other temporary disability leave -- no more, no less. State "ADA" and pregnacy laws may provide more advantageous provisions for the employee. The issue of whether you are "trapped" by the "partners" remarks is probably "open." Obviously, if you don't take her back when the leave is over, she will cite what the partner said and argue some form of discrimination based upon pregnancy. I would review what actions you've taken in the past with employees who went on non-FMLA leaves for any reason. Were they allowed to return or did you deny them "reinstatement"? It's always best to document problems and be "up front" with the employee as you go along. Even if the partner hadn't said anything and you refused to reinstate her after the pregnancy leave was over probably would have resulted in a filing against you anyways -- since you never brought to the employee's attention her work problems. You might as well do it now and at least document something and bring it to her attention than trying to do it way after the fact when she's ready to come back.

Theresa Gegen TX · April 2001

Remember that there is a pregnancy discrimation act. It requires that you not treat prenancy and related conditions less favorable than other medical conditions. So if you gave someone else leave for a medical condition, you have to give her the same type of leave. (For example if another employee broke his leg and needed 5 weeks off and you gave it to him). She also could claim sex discrimination.

Now you need to be up front with the employee about how long you will hold open her job for her--so she can determine if she wants to come back. Also, you will need to check your states laws to see whether they give her additional protection.

Before doing anything (and because of the manager's statement) I would run this by an employment lawyer in your state.

Good Luck.

smarti · April 2001

It seems to me that the company is dodging the real problem. If you have an employee creating problems for other employees, it should be addressed. "Getting rid" of someone on maternity leave is not the appropriate way to handle this matter (in my opinion). I also agree with CA - look at the pregnancy disability act - you could be in more trouble violating these laws and then your real problem with this employee will only just begin. Good Luck

Gillian · April 2001

I agree with the other writers, there are the possibilities that you will be violating Preganancy Leave regs or your own policies. The real problem, however, is allowing the employee to perform inappropriately and failing to deal with the results of her behavior. It is much better to deal with issues than try to get around them by using an excuse. Always be "up front" with employees. Not doing so does neither party a service.

Off the cuff answer.

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