Do you have a pregnant employee not performing at their best? This is a delicate situation for employers and companies all around the world. It can be difficult to know how to handle it. Pregnant women are rightfully protected by many laws. But that can make it hard when it comes to an employer’s obligation to his or her business.
We’ve compiled a list of the best ways to deal with the difficult situation of a pregnant employee not performing at capacity. What should you do? How should you handle it? And how do you avoid potential trouble?
Educate Yourself about Pregnancy-Related Discrimination Laws
The Pregnancy Discrimination Act (PDA) falls under Title VII of the Civil Rights Act of 1964. It ensures that employers cannot discriminate against an employee based on the fact that they are pregnant, could become/intend to become pregnant, ever were pregnant, have a medical condition related to pregnancy, or that they have had or are considering having an abortion.
In the most general sense, this means that employees cannot be dismissed from employment, rejected for a job/promotion, provided with less assignments, or forced to take any kind of leave for any of those reasons. An employer also cannot remove someone from their job or put them on leave simply on the basis that they believe the work could pose a risk to the pregnant employee or baby. Employers cannot make this judgment call, because they are not medically-licensed to do so.
However, an employer is not legally required to keep a pregnant employee in a job that she is unable to perform. The same goes for the case in which she would pose a threat to the safety of others. It is important that you understand the difference in these employer-rights.
Even though all of this information seems tricky, the PDA simply requires that women affected in this way are treated in the same manner as other employees and applicants.
Does this Apply to Your Company?
The PDA’s requirements do not apply to all companies. Consequently, you’ll need to know if they apply to you when your pregnant employee is not performing to standard. For example, the PDA does not apply to companies with less than 15 employees. State laws can differ on discrimination requirements for small businesses, however. It’s essential to consult local management services for exact statutes.
Safeguard Yourself with a Written Policy
While obviously adhering to federal law, the best thing your company can do to protect against the potential for poor-performance is to draw up its own written policy on the matter. Written policies are a great protection against many employment actions. Nonetheless, you should enforce these policies before you have to deal with a pregnant employee not performing well.
When considering a written policy, you will first need to understand that the policy cannot be legally-“discriminatory in its application“. For instance, you cannot instate a policy that simply allows you to fire pregnant employees. However, you can instate one that allows you to eliminate a pregnant woman because they are not meeting certain requirements (un-related specifically to the pregnancy). These policies can include your requirements from employees, what benefits they would be offered, etc. Be sure to follow your own written policies however, since not doing so can land you in legal trouble.
Recognize when Your Policy Should Be Disregarded
Sometimes your written policy does not apply. For companies with 15 or more employees, you may be required to make certain exceptions. The ADA (Americans with Disabilities Act) includes pregnant employees that “may have impairments related to their pregnancies”. An employer cannot discriminate against pregnant employees who suffer from any impairments, as diagnosed by a physician.
If an employee falls under this category, you must provide them with reasonable accommodations. This includes redistributing functions (like lifting), modifying schedules, granting leave, or assigning “light-duty”. However, an employer may not be required to make these modifications if you can prove that these accommodations would result in “significant difficulty or expense”.
Try Having an Honest Conversation
Discussing an employee’s work performance is always awkward. However, it can become increasingly delicate with a pregnant employee not performing well enough. While most of the time a pregnant employee is just like any other, you can have issues every once in a while. Ideally, the employee will approach you first to discuss the pregnancy and how it relates to her job. However, if she does not, it is your responsibility.
There is nothing illegal about speaking to a pregnant woman about her employment or performance, so don’t be scared. In most cases, a pregnant woman is aware of her situation and is eager to discuss how it relates to her employment. You should be sensitive, but firm. Do not be scared to approach her to openly discuss both the company’s and her requirements. This can clear the air the pregnant employee not performing adequately and also help her understand how to start performing better.
Know When to Terminate
You need to ensure that if you make the decision of termination in regards to a pregnant employee not performing well-enough, it is not because of the pregnancy. You should keep records of poor-performance, evaluations, and make notes of any conversations regarding poor-performance. This ensures that you have a paper trail of their lack-of-performance; showing evidence that they are not performing their jobs up to par.
As long as you have made the proper legal accommodations required for her, stated your expectations, and have proper records showing a lack of performance, the company should be safe from legal ramifications.
Final Thoughts
Though dealing with a poor-performing pregnant employee can be difficult, it doesn’t have to be that hard with the right tools. First and foremost, ensure your company is abiding by any state and federal laws. Secondly, try your best to fix the situation if possible, with policies and accommodations. And lastly, do what is best for the future of your company.
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