The fear of being sued can be down-right paralyzing for many employers working with pregnant employees. In some instances, this results in the employer avoiding the issue all together rather than taking some common sense steps.
Here are five steps an employer can take to make the company operate more efficiently, put a pregnant employee at ease, and avoid a lawsuit:
1. Know which laws apply to your company.
The Pregnancy Discrimination Act (PDA) and the Family Medical Leave Act (FMLA) are the two primary federal laws that apply to pregnant employees. But the PDA does not apply unless you have 15 more employees; a company must have at least 50 employees working in a 75-mile radius before it is covered by the FMLA. So, if you have 14 employees in your company, you are not covered by these laws. However, before you breathe a sigh of relief, your company may be subject to state or local laws that apply to pregnant employees. To be safe, consult with your friendly neighborhood management side employment attorney when developing your company policy.
2. Have a written policy.
The best protection against many employment actions is to have a written policy. Don't wait until she walks into your office to announce her pregnancy to decide how you deal with pregnant employees. When putting together a policy consider what type of benefits, if any, you will offer; whether you offer time off and whether any of it be will be paid; and what, if any, accommodations -- light duty, for instance -- you will offer. Be careful, though, that your policy is not discriminatory in its application. For instance, if you have a requirement that all employees be able to do a 25-chest to the ground pushup, this could be illegal. Such a policy doesn't say you have to fire pregnant employees. But it very well might eliminate any woman who is eight months pregnant. If you have 15 or more employees, even this "facially neutral" law would be illegal. Finally, any policy can become a double-edged sword when it is not followed. When representing a client, I love to find an employer who has not followed its own written policies. This can suggest that discrimination may be afoot.
3. Disregard your policy.
Remember what I just said about a policy? Right, forget your policy if your pregnant employee tells you that she has anything other than a normal pregnancy. This is doubly true if she gives you a note from a doctor saying that she needs a change at work, like a lifting restriction or time off. If your company has 15 or more employees, you are covered by the Americans with Disabilities Act (ADA). An employee covered by the Act is likely to be entitled to reasonable changes in her workplace to help with deal with any restrictions. The tricky thing about the ADA is that it can require that you come up with a specific plan to help the employee. So, ironically, a stance of "we treat all employees the same around here regardless of who they are" can land you on the wrong side of a lawsuit. Dealing with the ADA should not be handled by a line manager if you can help it. If you have a human resources department, let them assist an employee with a disability, even if it is temporary. If you don't have a human resources department then it's probably worth getting any attorney to help you stay compliant with the ADA.
4. Talk to her.
What I just described makes it sound like dealing with a pregnant employee is a minefield, but in reality having a pregnant employee is not tantamount to dealing with a walking lawsuit in your office. Nine times out of 10, your pregnant employee is darn happy to be pregnant and wants to do a good job for you, but she might be anxious about her position in company. If she approaches you, don't feel that you need to call in the grey-suited legal SWAT team to deal with her. Instead, talk to her about her pregnancy and work. If you have a maternity leave policy, talk to her about her plans. She will probably welcome the opportunity for some certainty. Should you initiate the conversation? Ideally she will raise the issue first. Regardless, there is nothing illegal about talking to a pregnant woman about her pregnancy as long as you do not have a discriminatory reason for doing so. For instance, if you need to know when and how to get coverage for a pregnant employee's position while she is out, there is nothing improper about asking the timing of her leave. And remember to smile; she's a pregnant woman, not kryptonite.
5. Don't patronize.
You need not swoop into "protect" a pregnant employee, particularly if she isn't asking for it. Even well-intentioned discriminatory treatment can be illegal. This does not mean you have to pretend like a pregnant employee isn't pregnant. Throwing a surprise baby shower or offering to help carry her heavy computer bag up the stairs is not going to land you in federal court. What it does mean, however, is you cannot make changes in her job based on assumption about what she wants or needs. For instance, it would be illegal to pass over a qualified pregnant woman who has applied for a promotion because "a pregnant woman doesn't need the stress of a new position." Even if you genuinely believe that, it would be illegal discrimination to act on it if your company is covered by anti-discrimination law.
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Tom Spiggle is author of "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace" which will hit shelves later this summer. He is founder of the Spiggle Law Firm based in Arlington, Va., where he focuses on workplace law specializing in helping clients facing discrimination due to pregnancy or other family-care issues, such as caring for a sick child or elderly parent. This is Spiggle's first book. To learn more, visit: www.yourepregnantyourefired.com.