Employee leaves of absence for maternity or medical reasons can be tricky to navigate and can place heavy staffing and workload burdens on small and mid-sized practices, says Chris Lessard, an HR advisor with CEDR HR Solutions.
Lessard, a California-based attorney, says practices can face potential discrimination claims for violating leave-of-absence laws, along with scheduling and staff conflicts and shortfalls, all of which can impact the quality of patient care they provide.
“Good, proper documentation of medical and maternity-related issues, leaves of absence or pregnancy itself is going to be very critical for HR purposes. Good, thorough documentation is your best friend,” he says.
Leave-of-absence (LOA) policies allow you to clearly communicate with your employees and keep yourself consistent and compliant.
If you don’t know what your rules are, then your employees won’t know either, and that can lead to miscommunication and poor outcomes.
4 common LOA mistakes
Mistakes surrounding leave-of-absence policies include:
- Failure to have a policy in place. Lessard says not having one is not going to prevent your employees from becoming pregnant and certainly will not prevent them from requesting maternity leave.
- Deciding on a case-by-case basis how much leave time you are going to give to specific employees. “Not every leave amount is going to be the same time frame, but deciding on a case-by-case basis, especially if the employee could say, ‘I feel like you’re playing favorites’ or ‘I feel like you’re punishing me’ is very dangerous,” he says.
- Providing different amounts of leave time based on the type of medical issue. Examples include providing different leave times for C-section births versus vaginal deliveries; medical conditions versus pregnancy; or heart conditions versus back conditions. “If you give more time for C-sections, your employees may be tempted to say, ‘Well, I guess I’ll get a C-section because I need more time.'” At worst, providing differing amounts of time could lead to a discrimination issue because some employees can’t deliver a baby vaginally, notes Lessard.
- Having automatic termination language in your LOA policy. An example would be stating that employees will not receive more than six weeks of leave and employees who request more than six weeks will be denied and if they don’t return in six weeks, they will be terminated. Lessard says automatic termination language could contravene the Americans With Disabilities Act (ADA) and result in a lawsuit. It could also cause employees who are not medically fit to return to work within six weeks doing so anyway out of fear of termination.
A good LOA policy is going to be legally compliant and kept up to date to ensure that laws have not changed. “You want to have them reassessed at least on an annual basis by an HR professional or an attorney, to make sure that what was (deemed) previously compliant remains so.”
You also need to know how different laws relating to things, such as paid sick-leave laws or vacation time laws interplay with maternity leave laws.
Good LOA policies are published (written down) and acknowledged by employees via their signatures stating that they received the information. “The cardinal rule of HR is, if it’s not in writing, it didn’t happen,” says Lessard.
He adds that good policies surrounding leaves of absence are also consistently applied, while allowing some room for flexibility.
Protected classes
Governments provide protection against worker discrimination based on things such as age, race, religion, pregnancy, and disability.
While a pregnant employee is protected against discrimination from her employee, that doesn’t make her immune to being fired or written up for issues unrelated to her pregnancy. However, employers are going to need to have good documentation and tread carefully, says Lessard.
If someone is in a protected class, you need to avoid making assumptions about their needs. If an employee tells you she is pregnant, you must leave it up to her to tell you that she is uncomfortable being exposed to something such as X-ray radiation. If you take action on your own without her having raised the issue, you could be accused of discriminating against that employee, according to Lessard.
You want to have clear communication with your pregnant employees, both in terms of providing an open-door policy to discuss issues they are having, and to communicate your policies in your employee handbook. Employees need to be aware that you cannot do things for them when they have not requested accommodations.
It is important to rely on the employee’s doctor for information on any limitations that the employee faces during or after a pregnancy. All discussions need to be carefully documented.
Accommodation issues in pregnancy
Lessard says it is vital for employers to provide reasonable accommodation to pregnant employees. For example, if a pregnant worker tells you she is experiencing severe morning sickness and asks you if she can come in later and make up the time later in the day, you need to have a conversation about that and document what was discussed.
“What is or isn’t reasonable is based on your size as an employer, the expense of (granting) the accommodation, and your ability to provide it to the employee without it becoming an undue burden on your practice,” he says.
Lessard warns against immediately saying no to a request without first having a full discussion with the employee. If you cannot, for example, let the pregnant woman with morning sickness come in later every day, you can perhaps find a way to let her do so on some, but not all mornings.
Good documentation goes hand-in-hand with administration
Lessard says there are going to be many notice requirements during various stages in an employee’s pregnancy, which start the moment the worker tells you she is pregnant.
From that point, you are required to provide her with literature on her rights as a pregnant employee and what the maternity leave requirements may be.
You need to be mindful of the tone of documentation relating to the pregnancy to ensure it doesn’t sound as though she could be in any sort of work-related trouble as a result of her pregnancy.
Your policies need to be proactive, rather than reactive and be clearly presented in writing to affected employees.
Returning and release to work
Employees usually return to work after having a baby. Employers need to have clear rules and expectations surrounding their return to work and how employees are going to notify you that they are ready to return. They also need to have documentation from their physicians stating that they are clear to return to work and detailing any limitations that they may face.
Employees requiring additional time off beyond their expected return dates, for medical reasons, need to communicate that information to you well in advance and have supporting documentation from their doctors.
If an employee faces limitations, as set out in documentation from a physician, you must ensure that the worker does not perform unapproved duties which could result in an injury or workers’ compensation claim.
“When employees get back to work, we want to reinstate them to similar status and pay whenever we can. If there is a medical reason why they cannot come back, we are going to look at whether or not it’s reasonable to grant additional leave, or to change certain other terms and conditions of their employment,” he says.
Lessard notes that it can be complicated and challenging to have employees reinstated to their old roles, and they may not even wish to return in the same capacity.
If the employee requests a change in working conditions upon returning to work, you must carefully document all conversations to make it clear that the employee, not you, requested the change.
Nursing mothers need accommodation
When a worker returns from a maternity leave, federal law requires that she be given time to pump breast milk during the work day in a private area for up to one year after giving birth.
Lessard says you can ask the employee to take pumping breaks concurrently with other types of breaks, such as meal breaks.
Conclusion
Every manager will, at some time, have an employee request a maternity or medical leave of absence. Handled incorrectly, you risk potential discrimination claims for violating LOA laws. Be sure you understand the rules before you approve or deny the request.
