Pregnant new hires, employment contracts, and policy updates

A new hire informed us that she's pregnant. She's still in her getting acquainted period. Do I have to hold her job for her once she's on maternity leave?

The legal side of things: At a federal level, employers with 15 or more employees aren’t allowed to discriminate against employees based on current, past, or potential pregnancies. Refusing to hold her job simply because the leave is related to pregnancy would be pretty risky.

In fact, the government just doubled down on those protections by enacting the Pregnant Worker Fairness Act. This law adds a layer of protection for employees when it comes to pregnancy related limitations and their need for accommodations. A leave of absence is almost always considered a reasonable accommodation, and proving that holding her job is an undue burden is a high bar to meet. You can read more about the Act in our recent blog.

There are also several states that offer similar, if not stronger, protections for small employers. That’s why it’s so important to have the correct policies in your handbook and to talk to an HR expert any time you’re managing maternity leave. It’s incredibly easy to violate labor laws if you don’t know which protections employees are entitled to.

Now for the human approach: We know hearing that a new employee is going to need an extended period of time off right off the bat can be stressful. But it doesn’t mean it has to be an insurmountable problem. Keeping in mind that this employee ended up winning you over as the best qualified and as a good fit for your team, there is still a high likelihood she can turn out to be one of your best. If that’s the case, will losing her over two months of leave be worth it? By the time her leave comes around, you might find that getting a temp to fill in is a better option than going through the entire hiring process again.

On an internal level, denying maternity leave for no reason other than not wanting to provide it can have a negative impact on team morale and the office’s image. We know that might sound over the top, but we’ve talked to members that have dealt with backlash from their community and teams for things like this.

Instead of rushing to decide how you’re going to handle this months from now, focus on her current performance. Any decisions you make about her continued employment should be objectively based on her ability to do the job she was hired to do. If she ends up not being a good fit for performance reasons and you document your attempts at coaching, the fact that she’s pregnant isn’t an absolute barrier to denying her leave. But let’s not kid ourselves, letting an employee who is pregnant go is always risky business.

As much information as we provided here, it’s only a small portion of what CEDR advisors factor in when providing guidance about this topic. Aside from state and federal laws, we want to help you consider the specific details about this employee’s time at your practice, how you’ve handled maternity leave in the past, and what your handbook policy says. The bottom line is that talking to an HR expert to make sure you’re compliant before denying leave will always be the safest option.

What should I include in a standard employment contract for the administrative staff at my office?

The legal side of things: Be careful when it comes to using contracts. A lot of employers think the word “contract” is a catch-all for any document that lays out the details of employment, and that gets them into trouble. Even calling a document a contract, or using any language like “I agree”, can land you in hot water.

Employment attorneys look for keywords that they can use in their case against you to prove you did something wrong, even if what you did was unintentional. Plus, contracts are legally binding and can alter the at-will status of an employee, which makes termination a lot tricker down the road.

The truth is there’s no such thing as a “standard employment contract,” because each office and role needs something different. There are actually very few positions in the industries that we work with that actually warrant an employment contract. We strongly suggest talking to an HR expert before creating your own “contract.” Chances are you don’t really need one, and if you do, it should always be drawn up by an an expert. Don’t try to DIY!

Now for the human approach: Ok, so you probably don’t need a contract, but that doesn’t mean that you shouldn’t give your employees something that confirms what their job is and what comes with it. This is where the offer letter comes in.

Every employee in your office should receive an offer letter when they get hired.If you’re a CEDR member, you’ve probably had us customize a few for you (we do that, by the way). An offer letter outlines the basic terms of employment (compensation, benefits, schedule, etc.) and includes any conditions that need to be met to be hired, like passing a background check.

You might be thinking “that’s exactly what I mean by employment contract!” If so, you’re not alone. We talk to employers all the time that think they want a contract but what they’re actually describing is an offer letter.

The key distinction is that when you’re writing an offer letter, you’re laying out the initial terms of employment, and those details (pay rate, work hours, etc.) can be changed down the line. But once you make it a contract, you can’t change the person’s pay, hours, etc. unless they agree to those changes.

Knowing the difference and using the right document is essential to make sure you don’t inadvertently take your management power right out of your own hands.

The jury duty policy in my handbook is written in a way that gives employees more paid time off than I intended. I only realized it because an employee requested to use this time. Can I update the policy effective immediately and have them take the time unpaid?

The legal side of things: Before making any changes, take a look at what your state’s law says about jury duty. There’s a good amount of states with unique jury duty laws that require you to pay employees for at least some of the time spent serving. You should make sure that the policy wasn’t written that way in order to comply with the law.

If no state law applies, what your policy says is up to you, and you can change it at any time. However, denying this employee’s request could be risky. Since denying it would prevent them from receiving paid time they were previously promised, it could be seen as retaliation for requesting time off for jury duty or retroactively taking away pay and benefits

Also good to keep in mind that the government doesn’t take kindly to someone being penalized for serving as a juror.

Now for the human approach: Putting aside the potential risk of denying the employee’s request, there’s also a morale element at play. Your employee has already seen this policy. It’s been in your handbook for some time. As far as they know, this is the same benefit you’ve granted to other employees that have been called for jury duty. Updating the policy suddenly solely so they don’t get the benefit will likely not go over well. Our advice is to pay this employee for their time at jury duty and update your policy for future requests.

That guidance isn’t specific to jury duty.

As a general rule, we don’t recommend abruptly changing policies to avoid having to grant a benefit after an employee has already asked about it. We’ve spoken to members that want to change their policies every other month because of a specific scenario. However, constantly making changes to your policies can be confusing for your staff and inefficient for you as a manager. Your employees can become numb to those changes or they can start to feel that the handbook is not as solid of a document as you want it to be.

Jul 26, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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