Planning An Employee's Return From Maternity Leave

(Published April 15, 2009)

 

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

 

Work with pregnant employees to plan ahead for their maternity leave and return to work.  That way, unpleasant surprises won't crop up on either end that can interrupt work flow…or drag you into court.

 

Change Of Plans

Before administrative assistant Alicia Sanford went out on maternity leave, manager Dave Schmidt asked her if she would be working full-time when she returned. Because she was due to give birth to triplets, Schmidt figured there was a great possibility that she would not. He assured her that it would be no problem if she wanted to come back part-time. Sanford indicated that working part-time would probably be best.

 

During week 10 of Sanford's 12 weeks of maternity leave, Schmidt called Sanford to begin planning her return. They chatted for a few minutes about her babies, then got down to business.

 

"So, Alicia, what are your plans? Are you coming back?" he joked.

 

"I can start back on May 4th. I'd like to work only about 25 to 30 hours per week. How does that sound?"

 

"That's fine with me," Schmidt replied. "Just remember that part-time employees are not eligible for benefits."

 

"What? Why are you taking my benefits away from me?"

 

"Alicia, the company does not provide benefits for part-time positions. That has always been our policy."

 

Sanford tried to negotiate, but there was nothing Schmidt could do.

 

Birth Of A Lawsuit

Two days later, Sanford called Schmidt back. "Okay, Dave, I've worked out my child care arrangements so I can return to work full-time in order to keep my benefits."

 

"Oh," said Schmidt, surprised. He hadn't realized Sanford was even considering this as an option. "Unfortunately, we can no longer afford a full-time administrative assistant with a full benefits package. We've had a sudden increase in costs, while our sales have continued to drop. I'm going to have to let you go."

 

Sanford claimed in court that she was fired due to her pregnancy. As evidence of Schmidt's bias, she pointed out that his questions about whether she would return full-time indicated that he felt having children would affect her ability to perform her job. As evidence that the company's financial situation was a pretext for discrimination, she claimed that if the company truly needed to cut costs, Schmidt would not have tried to get her to return to work.

 

The court viewed the situation differently. Schmidt's job required him to plan for Sanford's absence and return, so it was prudent for him to discuss her post-childbirth plans. He was willing to allow her to return part-time; that he fired her only after she indicated that she wanted to return full-time with benefits, which would be significantly more expensive, supports the company's financial reason for her termination.

 

Action Tips

The Equal Employment Opportunity Commission (EEOC) states that it is discriminatory to make assumptions about pregnant employees' commitment or ability to perform their jobs.  It goes on to state that it "will generally regard a pregnancy-related inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker."  Fear not.  Planning for an employee's absence is a management duty.  Discussing an employee's return from maternity leave is not the legal minefield it may sound like, if you follow these tips.

• Give the employee the facts about the company's maternity leave policy, pay and benefits issues, etc., in order for her to decide her leave and post-leave plans.  Failing to plan for an employee's maternity leave could be used as evidence to show that you were unhappy with or angry about the employee's need for leave.
  
  
• Don't offer unsolicited advice or opinions about the employee's plans (e.g., "If it was me, I'd work right up until the baby is born," or "Don't you think working full-time will be too hard after having triplets?").
  
  
• Follow applicable laws, company policies, and past practice for holding a job open for an employee on maternity leave.  She should be treated the same as employees on sick or disability leave.
  
  
• Don't establish a mandatory beginning date or minimum length of time for maternity leave.
  
  
• Make sure you can prove that any adverse employment decisions are based on legitimate business reasons, and not on an employee's pregnancy or maternity leave.
  
  
• Keep in mind that some pregnant employees sincerely do not know what their future plans are or may change their minds after giving birth.  Don't hold it against them.  Do remind them that it's their responsibility to inform you of any changes in their expected return-to-work date or employment status.  In the meantime, prepare your own contingency plans for every eventuality.