September 5, 2013

Treading Softly around Maternity Leave

woman about to go on maternity leave

I have a pregnant employee who works two days per week, and has been with the company for less than a year. Last week, she approached me to let me know that she is planning to stop working two months before her due date. She also wouldn’t say for sure if she would be coming back or not. Do I make her write a resignation letter before leaving?

You want to be careful here. Prompting her to put something in writing, under the vague circumstances you have outlined, can be problematic. Assumptive “discharge” of an employee who has informed you she is pregnant and intends to take time off is not something you or anyone wants to do. However, I think I understand what you’re getting at. Here are some suggestions:

The best way to address this is through a well-written policy, which should be part of an overall policy manual to create consistency. More importantly, you need to understand the policy and its limitations. For example, it is not okay to require a pregnant employee to visit her doctor and then provide a note saying it’s safe for her to continue to work. That is a common and well-intentioned, but miswritten, policy that can get you into a lot of trouble with the EEOC.

Your policy needs to establish how much time any employee is allowed to go on temporary disability leave. Depending on your state and the size of your practice (ask an HR expert or attorney versed in employment law FIRST), a reasonable amount of time would be six weeks. With this policy in place, an employee taking two months off before the birth of her child would indicate that she is resigning and not actually taking maternity leave. You would then be able to cordially interact with her, based on your policy, to establish that she understands the rules and consequently intends to resign.

Approach her with something like: “Hey, Sally. The other day you indicated that you wanted to take two months off during your pregnancy, but you didn’t really inform me of what your plans are going forward, as far as coming back to work. What are your plans?”

This policy, when written properly, establishes that she doesn’t get to “not say for sure” when it comes to her return. It protects both you and her, as well as allowing her to return to work if her position is still available. In some states, and under certain conditions based on the number of employees, holding her position is required.

At this time, there is no “form” you would want to give her yet. First, you need to properly establish your rules regarding maternity leave. Making sure to understand and properly address pregnancy in the workplace is a common area of concern. I’d get some help with this as soon as possible so that you can set expectations, and more importantly, avoid any upsets on either side.

Once you get the answers to the question that I posted above (“What are your plans?”), you can take a step back and decide what the best approach is. Eight weeks in advance and six weeks after the birth, for a total of fourteen weeks, may not a reasonable amount of time to be on leave.

As always, if you have a question about what I’ve discussed, or if I’ve raised a concern for something happening in your practice, call us at 866-414-6056. If we can, we will help you at no charge.

Friendly Disclaimer: This article is general education and guidance and is not a substitution for legal advice. Employment issues are complicated and often require specific expert or legal guidance based on the circumstances.

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 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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