Disability and Maternity Leave
jrmvt
21 Posts
OK, we've got a tough issue here. My wife (CEO) and I (CFO) are part owners of a nursery in Virginia. The ee who is next in command around here is pregnant and expecting in early May (middle of Spring, of course). In a meeting yesterday, my wife asked the ee what her plans were after the child was born. We were planning to meet with my wife's parents (who are the other owners) later this week to decide what to offer the ee. She responded that she was planning to take off 12 weeks and she'd see us in August.
This really caught us off guard. We have fewer than 50 employees and are not subject to FMLA, which this employee is aware of. We have never had a pregnant employee before, besides my wife, and have never really had to deal with an employee being out for an extended period of time with an injury. My wife and I (who are salaried) took about 5 or 6 weeks when our last child was born. The ee cited this as her reason for wanting 12 weeks, because she kept the operation going while we were out. Being owners of the business though, those weren't complete weeks off. I still came in for part of 1 or 2 days per week to do payroll, pay bills, spray chemicals, etc. and my wife did some work towards the end of the period as well.
We are very fond of this employee and she does a great job for us, but we don't want to offer her something wonderful and then be stuck with it for everyone who has a short-term disability or becomes pregnant. We also expect the ee to have more children, so this will have to be repeated down the road. In my opinion, the gov't set the threshold at 50 employees because they understood that FMLA was an onerous requirement for very small businesses.
I was wondering if any other small businesses out there could let me know what they offer? We want to be fair, but not shoot ourselves in the foot.
Thanks,
jrmvt
This really caught us off guard. We have fewer than 50 employees and are not subject to FMLA, which this employee is aware of. We have never had a pregnant employee before, besides my wife, and have never really had to deal with an employee being out for an extended period of time with an injury. My wife and I (who are salaried) took about 5 or 6 weeks when our last child was born. The ee cited this as her reason for wanting 12 weeks, because she kept the operation going while we were out. Being owners of the business though, those weren't complete weeks off. I still came in for part of 1 or 2 days per week to do payroll, pay bills, spray chemicals, etc. and my wife did some work towards the end of the period as well.
We are very fond of this employee and she does a great job for us, but we don't want to offer her something wonderful and then be stuck with it for everyone who has a short-term disability or becomes pregnant. We also expect the ee to have more children, so this will have to be repeated down the road. In my opinion, the gov't set the threshold at 50 employees because they understood that FMLA was an onerous requirement for very small businesses.
I was wondering if any other small businesses out there could let me know what they offer? We want to be fair, but not shoot ourselves in the foot.
Thanks,
jrmvt
Comments
If you give her something more, be careful that you treat her the same as a man who needs time off for a bad back. Otherwise, you might commit sex discrimination against the man or the woman.
I see you're from Mechanicsville, Va. Where's that? I grew up in Va Beach.
James Sokolowski
HRhero.com
And Mechanicsville is just outside Richmond.
Thanks for the input,
jrmvt
Since I don't really have a favorite, I would probably utilize the ECN provided by this fine publication company. The VA law firm is in Richmond - LeClair Ryan, Riverfront Plaza, East Tower, 951 East Byrd Street, Richmond, VA 23219
804/343-4077 and David E. Nagle seems to be the guy stuck with your newsletter, if I'm not mistaken.
You could also ask around for a reference, although if you are like us, you probably don't even know people who use labor law attorneys! I personally have ties with a Nebraska law firm after attending training sessions they did through a training organization that will not be mentioned here.
I'm sure I don't need to tell you to tread very carefully in ways other than legally. If you refuse her what she is asking, she may very well walk, or possibly worse, stay on but become resentful. Does she come up with the 12 weeks from your six weeks times the two of you? That doesn't make much sense.
Also, something to consider - could she be a "key" employee if you were under FMLA?
Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained. In order to do so, the employer must:
*notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave;
*notify the employee as soon as the employer decides it will deny job restoration, and explain the reasons for this decision;
*offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and
*make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.
A "key" employee is a salaried "eligible" employee who is among the highest paid ten percent of employees within 75 miles of the work site.
[url]http://www.dol.gov/esa/regs/compliance/whd/whdfs28.htm[/url]
I don't know if that helps or hurts, but something else to think about. I guess the point I make is even if she were eligible for FMLA, she might fall into this category and not be able to take the 12 weeks.
I usually sign off with a "good luck!" and I can think of no one who needs it more than you. Keep us updated on how it goes - I'm really curious.
What would you do if you were not afraid?
What would you do if you were not afraid of setting a precedent that is going to bite you later?
What would you do if you were not afraid of being short handed during your growing season?
What would you do if you were not afraid of her having more kids and expecting the same time off?
What would you do if you weren't afraid of being sued or losing your employee or appearing insensitive?
If you weren't afraid, wouldn't you want to try to give your employee the time off she needs for one of the most important experiences of her life? Perhaps not 12 weeks, but could you give her 8? 10? Hire some temporary help? It might not be easy but she was there for you and I think you need to be there for her. I think you won't regret it either.
Again, we have no problem giving her some time off. Twelve weeks was just more than we were expecting to go. If we weren't afraid of any of that stuff or of the impact her being gone for an extended amount of time would have on the business, why wouldn't we give her a year, 2, heck, the first 18 years of the child's life? I agree that having a child is one of the most important experiences in a person's life and that parents need time with their children, but the fact is that those fears are real. Ultimately, we have a business to run and keep profitable.
Thanks for all of the great input!
jrmvt
PORK
Thanks again,
jrmvt
Without FMLA the individual becomes medically disqualified at the end of the six (6) period.
With FMLA 6 weeks for a normal birth and 8 weeks for a "C Section" are the periods listed in our Medical Leave Policy and pays a disability income to the female EE. After that period and her physician determines he will keep her out for whatever reason, the compensation piece STOPs, but the FMLA situation can continue for up to the total 8 weeks.
Your company policy is key to payments of disability income. The law on FMLA covers job protection, until the Democrats get into the White House and the majority of the Senate. At which time, I believe we employers will be tagged with the FMLA & DISABILITY INCOMEm which will be under the same law.
I hope this clarifys.
PORK
>
>With FMLA 6 weeks for a normal birth and 8 weeks
>for a "C Section" are the periods listed in our
>Medical Leave Policy and pays a disability
>income to the female EE. After that period and
>her physician determines he will keep her out
>for whatever reason, the compensation piece
>STOPs, but the FMLA situation can continue for
>up to the total 8 weeks.
>
>PORK
I am confused. What you are saying is that pegnancy is treated different than other illnesses and that is illegal. Please explain.
Should the physician keep the employee out longer than the designated time period the employee has every option to apply for a "Hardship" relief of the "no pay due status" due to the physician's orders. We have approved 100% of these cases which has been 3 in the last 6 years. We do not discriminate the application of the standards set by the written and published policy.
Sorry for the confusion!
PORK
While the poem is nice, it ignores reality.
How many employees do you have? That is critical becuase if you only have a few you may not even have to worry about discrimination laws.
That aside, you want to keep her. The only way I see you doing that is talking to her. Tell her what you told us. She's a valued ee, but giving her 12 weeks is too much of a burden. Then the ball is in her court. Let her help you figure it out. If she doesn't and bitches and complains... maybe your assessment is wrong of how valuable she is.
If you do in fact fall under the discrimination laws (fed and state) I would be ABSOLUTLEY sure that you don't give her less time off than you took.
Regardless of discrimination laws, we were not figuring on giving her any less time than we took - that would plainly not be fair.
Thanks,
jrmvt
As long as you are not violating any laws or discriminating against this employee based on past practices you've made your decision.
I hope the Old Dominion State is well this morning. I'm from Northern Virginia (Prince william County). I knew James had some redeeming qualities, now I know why. I don't fault him though, any Tidewater Region boy who spends enough time in Brentwood is liable to go astray
Good luck.
Gene
Of course you are a business but there are all kinds of ways at looking at the bottom line. Where I am located, its very difficult to find excellent ee's so I tend to lean towards really making an effort to retain talent.
My point was that sometimes we get caught up in "what am I required to do for my ee's" and we lose sight of "what should I do" for them.
I am assuming that the ee will be reasonable and recognize your effort to balance business needs with her desire to spend time with her new child. If the ee isn't reasonable, you likely have a problem no matter what you do.
1) You need to create a basic attendance policy to help you be consistent. This helps the employees see you as being fair, and prevents you from re-thinking this stuff every time a new issue comes up. You can include enough leniency to allow for maternity leave etc., but should have a maximum leave time whereafter employment ends. (Eg: Ee is excused with no attendance points if a doctor says no work, but if ee can't return to work after 8 weeks, employment ends.)
2) You should consider a short-term-disability policy of some sort. Even if it is something you administer in-house, just write yourself a policy that says who will get paid, for how long, and under what circumstances.
For both policies, consider what you can live with for every other employee. It sounds like you are already thinking this.
Once you have these outlined, go back to the ee and let her know that you want to be fair, but you also have a business to run, and here is what you are able to offer your employees, then spell it out for her. (Eg- We'll pay you 60% of regular pay as long as the doctor says you need to be off for your own medical, up to a max. 6 weeks. After that no pay. Also, we have determined that 8 weeks is the maximum amount of time we can allow for absences each year. If you can't return after 8 weeks, we will have to replace you. Or another option would be to take off 6 weeks full-time, and return part-time for the next 4 weeks.)
If you have a disability policy (insured or self funded) follow it for the first part of the leave. I would just sit down and talk with her regarding the rest of the approximate 6 weeks she wants off. May be you could work something out that she works part time during this period (like on weekends when the father is able to look after the child). May be you can turn it into a win/win for both of you.
However, you do make the decisions and need to decide what you can and want to do for her before you talk with her, but also be open to other suggestions. (If she brings up your situation, just turn it back to her and say you aren't talking about yours, but hers.)
Good Luck. Remember good employees are hard to find.
E Wart
A couple of things about this thread I find slightly amazing. One is: several posts suggest either terminating this EE or "inviting her to resign" [and re-apply after delivery, taking her chances that her job will still be available]....the latter alternative, in my book, is still roughly equivalent to termination. Does no one else find that this amounts to terminating the EE for being pregnant....and that doing so clearly exposes the ER to a lawsuit?? (OK, it's not technically firing her for being PREGNANT...it's firing her for taking leave to give birth. But, even in VA, would a jury see much substance to this distinction?)
Second, no one seems to be suggesting what seems to me the obvious approach, particularly since you value this EE, and want her to return to work. Why not have a conversation with her, and share w/her your concerns about her lengthy absence: she might be willing to negotiate with you and come to an arrangement that meets both your needs and hers. Before we go to discussions of termination or inviting her to resign, isn't it at least worth a conversation to explore the options?
That said, I agree with others that it would be a good idea to put a policy in place to address this for the future.
Best of luck.
We don't currently have a Short-term leave policy and there is no insurance. I don't think she is expecting for the 12 weeks to be with pay. I'm not sure she is expecting any of the 12 weeks to be with pay. I was thinking that offering to pay her for part of the time might make it easier to talk her down from 12 weeks.
I completely agree that in the end there will need to be negotiation. I just need to understand how whatever we agree to give her will affect us for pregnancy AND non-pregnancy short term disabilities in the future. The way I see it now, we shouldn't agree to give her anything that we would have a problem giving to any other employee down the road.
Thanks for all of the wishes of luck and I'll keep y'all posted!
jrmvt
We self-funded for awhile and it was more of a headache than you want to take on (and this was prior to HIPAA).
If you don't already, would put some type of leave policy in place which would enable people to request time off. If you have a brother-in-law in the business, he can help you with the wording.
Like the suggestion of talking to her - perhaps there's a middle ground such as working part-time from home or easing her way back into work after the baby is born at 6 weeks (work 1 day a week, etc.)
While you don't fall under FMLA, I would confirm this with your team member as you don't want to have (as you've noted) a precedent set or a feeling of entitlement.
First, thanks for all of the great replies!
We took the advice of many of you and met with an employment attorney to draft up a short-term disability policy. We went ahead and had her review our whole employee handbook while we were at it. She was a huge help! Right now we are self-funding (mainly because the literature I had from the Duck people said they would not cover a pregnancy during the first 9 months of the contract) but I plan on putting insurance in place once we get through this spring busy season.
We were pretty confident that if we paid for most of the six weeks, we could talk the employee down from the twelve weeks she wanted. We made her an offer, but she still insisted on the 12 weeks. She even said she would quit when she went out on maternity leave because she wouldn't feel right "using" us for those six weeks and then quitting. My wife decided that the long term effect on the business of losing the employee permanently was too great, so we established an "extended leave of absence" policy which will give the employee the extra 6 weeks, but unpaid and she will have to reimburse for insurance. She accepted this.
I'm still convinced we bent too far on this one, but I wasn't the majority opinion. I've played more poker than my wife has and I had the distinct feeling the employee was bluffing. Anyway, all is settled now.
Thanks again for all of the great input!
jrmvt
[email]kathy.demarino@londen-insurance.com[/email].
Thanks so much!
Our practice is subject to the FMLA, but we do have employees who go out for various things, mostly pregnancy, before they qualify. In this instance, we invite them to apply for a non FMLA leave of absence. On this type of leave, we advise that we will do everything we can to place employee back into a position upon their return. They can apply for up to 6 months, but there is no guarantee of re-employment.
Usually, these employees come back as soon as they can after a doctor's release, because they are not guaranteed a position.
This has worked out well for us.