The legal way to manage
A pregnancy at your practice affects your entire team.
Believe it or not, legal protections for pregnant employees start before an employee becomes pregnant. Further, employee maternity leave is one of the most rigorous tests of the policies in your employee handbook. It’s important, therefore, to have consistent, legally compliant policies in place before an employee starts making accommodation or leave requests as a result of a pregnancy.
Though by no means an exhaustive look at the subject, this article provides a brief overview of policies and protocols that both protect your practice and provide for your expectant employees.
Before your employee becomes pregnant
Look closely at the policies in your employee handbook and verify that they are applicable and complete with regard to potential employee maternity needs.
Are your policies clear and easy to understand? Do they provide for a standard amount of leave? Does your handbook specify whether or not an employee can still earn bonuses, or if your office will continue to pay for benefits while they are on leave? What about the process for returning to work when the leave is over? Are there additional applicable state and/or local laws you must follow? Has your handbook clearly notified employees that there may be risks in the workplace for someone who is pregnant or is trying to become pregnant?
The “maternity leave policies” in your employee handbook should not just be specific to new mothers and should also cover general leave of absence requests that can also be extended to cover paternity leave and cases of adoption. When dealing with a pregnancy in your office is essentially a question of assessing potential risks and providing reasonable accommodations when necessary, parental leave is usually provided as an opportunity to bond with a new family member. Maintaining a policy that offers parental leave for new mothers but not for new fathers can therefore be construed as sex discrimination.
You’ll also want to be sure that you have been consistently documenting your employee interactions and correction procedures should you ever need to discipline or terminate a pregnant employee—or an employee in any other protected category, for that matter.
After your employee
has announced her pregnancy
Whether your employee announces that she is currently expecting or that she hopes to become pregnant in the near future, the action for you as an employer is the same. Your responsibility is to remind them of the policies you already have in place and carry on as usual. You can, and should, remind your employee that you have policies in your handbook about taking a leave of absence, requesting accommodations and potential exposure to toxic substances. But you cannot make any decisions for her.
When doctors and managers find out that an employee is expecting, they are sometimes tempted to preemptively reassign that employee from duties that might seem too stressful, difficult or dangerous for a pregnant employee or an unborn child. The most common example is informing the employee that she will no longer be taking X-rays. Resist the temptation to do so. Forcing such an accommodation on an employee is tantamount to discrimination, regardless of how good your intentions were when making the offer.
If the employee asks for a reasonable accommodation during her pregnancy—such as extra breaks or a later start time to deal with morning sickness—do your best to grant the request. You are legally obligated to engage in an interactive process with the employee in an attempt to provide a reasonable accommodation. Most states allow employers to request information about an employee’s medical needs from a doctor to determine what a reasonable accommodation might entail, and then work with the employee to find a mutually agreeable solution.
If the result of this process shows that an accommodation will put an undue burden on your practice, the law won’t require you to do it—but that’s an extremely high standard that you’ll need to be able to prove. Document your conversations with the employee, as well as any research you do on potential accommodations. If you absolutely cannot come up with something that will work for both you and the employee, make sure you can demonstrate how accommodating the request would strain your practice in a way that makes the request impossible to meet on your end. Consult an HR expert before denying the request.
If she’s a bad employee, can I just let her go?
At CEDR, one of the most common questions we receive about expectant employees is, “Can I fire her?” Usually that employee has exhibited some less-than-favorable performance or behavior for some time and the employer simply hasn’t taken the time to address those issues.
The short answer here is “No.” Even with documentation showing the employee’s history of poor performance, it is generally not a good idea to let an employee go once you learn that she is pregnant as it will be hard for you to prove that the pregnancy was not your reason for terminating (which would be perceived as discrimination). If you have not been documenting that employee’s poor performance or behavior, it is also not the time to start writing the employee up for infractions. Your only legal protection here is going to be your history of documentation and your continued and consistent attempts to correct any policy violations or other issues prior to and during the pregnancy.
That said, you still have the right to let an expectant employee go for reasons unrelated to pregnancy if she caused a major HIPAA breach, made a serious mistake in patient care or otherwise committed an offense that would generally result in an immediate termination at your practice. Further, if you’ve already had significant performance issues the employee was fully aware of and things get worse or don’t change, termination is OK. You just have to consider the risk that she’ll try to go after you for discrimination. If you want to fire based on something new (or something that wasn’t previously brought up with the employee), unless it’s really significant, it’s going to be a high-risk termination as well as a PR risk to let her go—you don’t want everyone in town thinking or saying you fired the employee because she was pregnant.
Returning to work
It should be clear to your employee how long of a leave of absence she can request, the dates that have been approved and how to request an extension if it’s medically necessary. You can and should send a letter to remind your employee when her leave is coming to an end and request that she gets back to you with updates as to her readiness to return, but you cannot require her to do so.
But what if the employee’s temporary replacement proves to be a better fit for your practice? Can you keep the temp and terminate the employee who is on leave? Again, the answer here is “No.” You are legally required to return an employee who has been on an approved leave to the same position (or a position that is similar/equivalent/comparable in status) and pay she had before taking leave. But, having found someone who is a better fit for your office, you can take the lessons learned about the type of employee you are looking for to assist with future hiring decisions.
Bringing it all together
There is a lot to consider when drafting policies for your practice, including what is required of you by federal, state and local laws. You have to be intelligent to practice dentistry. Unless you also have extensive experience in HR and/or a law degree, you are going to want professional help drafting and implementing a maternity policy for your practice. By making expectations and processes clear upfront, you’ll find that having well-written policies in place can simplify even the most complicated situations.