Setting Precedents: What You Have Done Before Does Count

by Michael Haberman on January 4, 2012 · 0 comments

Sometimes in the fast and furious world of business we do things on the spur of the moment without thinking through the implications of what we are about to do. While I am all for spontaneity you do have to realize that you may be setting a precedent. This is especially true in the interactions with employees. You need to realize that what you have done before counts in how you deal with situations now.

This was exemplified by the discussion in an article from SHRM entitled PDA Prohibits Discrimination Against Pregnant New Employees. (PDA in this stands for Pregnancy Discrimination Act not public displays of affection.) Most companies know that the FMLA (Family and Medical Leave Act) covers employers that have over 50 employees and covers employees if they have been with the company for 12 months and 1250 hours. But what happens when you have a new employee who is pregnant and has not qualified for FMLA? Or if the company is small enough to not have to comply with the FMLA? According to the attorneys that contributed to the article “The key to navigating the tricky issue of having a newly hired pregnant employee is to be fair and consistent in the application of company policies. If a company modifies temporarily disabled employees’ job tasks during the duration of temporary disabilities, the pregnant employee should be provided a modification to the same extent as other temporarily disabled employees. If a company allows leave for personal reasons or short-term disability leave, newly hired pregnant employees should be allowed the same leave opportunities as other newly hired temporarily disabled employees.” (Quote from Gregory Bulgrin of the Chicago office of Fisher & Phillips.)

According to Megan Norris, an attorney with Miller Canfield in Detroit “A new employee will not be covered by the FMLA since she will not have her year in, so what the employer will have to do affirmatively in terms of time off will be determined primarily by the company’s time-off policies, including any disability policies….The employer will have to treat the employee the same way it would treat an employee who suddenly had a heart attack.”

And that is the measure of what you have to do, regardless of your size. How you have treated people before is how you will be expected to treat people in the future.

There are other issues that get wrapped up into this discussion as well. For example, if the pregnancy becomes complicated and is not “normal” then it may fall under the coverage provided by the Americans with Disabilities Act. State laws also play into how you deal with pregnant new employees, such as California’s pregnancy leave law. So you always need to be aware of state requirements that supersede Federal law.

By the way, being too nice to pregnant employees is problematic. According to Jon Yarbrough, an attorney with Constangy, Brooks & Smith in Asheville, N.C., “…the employer should not take steps that are protective of pregnant women. The employer should not transfer the pregnant employee to a less-demanding job based on some belief that the more demanding job may harm the employee or her pregnancy. The employer cannot force the employee to take leave or keep the employee out a certain amount of time after birth.” Of course this may be altered by accommodation measures under the ADA.

So, the lesson in this is to think through and understand the impact of you actions. Realize that what you do has a reach that is much greater than just that one individual employee. Here is a link to the Pregnancy Discrimination Act of 1978.

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