The scenario happens quite frequently. An employee needs some time off outside of the parameters of traditional paid time off. With a heart of generosity, the company allows the employee to take as much time as they need, except it reaches a certain point that now, the company desperately needs to fill the slot of the employee on leave.
And so, they unfortunately decide to terminate. When pressed with regard to the offer of FMLA, the employer retorts that it was never offered, because the employee never asked.
FMLA, or the Family Medical Leave Act, entitles eligible employees up to 12 weeks of unpaid, job and benefits protected leave. Where employers can get into hot water is assuming that in order to provide FMLA to an eligible employee, that the employee needs to say the words FMLA.
This is not the case. The burden of responsibility is on the employer to initiate the FMLA process. If they can reasonably assume that an employee will need time off beyond that of a typical sick leave, it is always appropriate to send the Notice of Rights and Responsibilities to the employee. Then, investigate the process further, if necessary.
Congratulations! You just found the perfect candidate and she can start immediately. Shortly after they begin working, she explains that she’ll need a bit of time off. In seven months, she’ll be welcoming her second child and will need time off to recover and bond with the baby.
You panic and immediately decide this perfect candidate might not be the perfect candidate after all. You are toying with the idea of terminating the employee.
Not so fast.
The EEOC is pretty clear on its stance on pregnant employees. Title VII of the Civil Rights Act of 1964 includes an amendment known as the Pregnancy Discrimination Act. Simply, an employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients or customers.
“What about that whole “At Will” thing? Can’t I terminate anyone for any reason?” Sure, but one would be wise to reevaluate that decision and consider the significant costs and negative PR and ethical ramifications stemming from a law suit. Not to mention, the time handling such litigation will take away from an already stretched too thin staff.
Temporarily staffing an individual in the place of the employee mentioned above or restructuring job assignments during a leave of absence can often be far less costly and disruptive than legal defense.
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