Handling issues involving maternity and pregnancy requires considering several factors, including statutes protecting against discrimination on the state and federal level, statutes allowing leave, safety factors, and retention of valuable employees.

The Massachusetts Pregnant Workers Fairness Act (PWFA) protects employees who announce plans to become pregnant, are pregnant, or have pregnancy-related disabilities. A federal statute, the Pregnant Discrimination Act of 1978 (PDA), also prohibits discrimination because a worker is pregnant.

Both the state and federal statutes prohibit discrimination by an employer against a woman who is pregnant or who has indicated an intention to become pregnant. The employer can’t make employment decisions such as termination or decreases in hours or pay based solely on the fact that an employee is pregnant or may become pregnant soon. A pregnant woman still has to show that she is performing her job responsibilities at an acceptable level. She cannot use pregnancy as an excuse not to get fired on other grounds.

The employer has a great deal of discretion to make legitimate business decisions that would have been made regardless of whether an employee is pregnant or not. That means if there was a layoff being considered anyway, then those plans do not have to work around the pregnancy of the employee. There can be a termination or reduction in hours because of a reasonable business decision.  The most important thing to remember is not to treat a pregnant employee differently from other employees because she is pregnant.

If the employer has become aware that an employee is pregnant but still needs to be terminated for another reason, documenting that reason and the actions of the employee underlying that decision need to be made clear to the employee in the documented discussions or warnings about performance. Just a business reason for termination, or terminating a pregnant employee as would be done with any other at-will employee, is likely not sufficient to avoid any repercussions of underlying discrimination because of pregnancy. Stating to the employee that they would likely need time off (beyond the job-protected 12 weeks paid leave under the Massachusetts Parental Leave Act for employees earning at least $5,700 over the previous 12-month period) would also invite a pregnancy discrimination claim.

Getting any legitimate reason for termination, such as poor performance, in writing and having other employees substantiate that is very important, as well as giving one or two written warnings before the eventual termination. You never know when those other employees may turn on you if a disgruntled employee decides to file suit, whether they have left the practice or not. Other employees can always claim immunity from termination by testifying and then claim retaliation if they get fired because of it.

A common mistake is to have intentions that are overly cautious when weighing whether a pregnant employee can do the work in the workplace in spite of her condition. If you are too concerned about the difficulties an employee may have in performing a job then ask the employee first if they feel they can handle work such as extra lifting or bending. Their own judgment about whether they can perform certain tasks should be a priority.

Since not obeying the rules of the workplace, especially regulations such as OSHA or HIPAA, is always a justifiable reason to terminate or discipline an employee, don’t let a pregnant employee get away with not following rules, and then using her pregnancy as an excuse for do so.

Appearances of discrimination should be reviewed and weighed in addition to business decisions to come up with mutually beneficial and satisfactory decisions for both the pregnant worker and the employer.

Attorney Brian T. Hatch
8 North Main Street Suite 403
Attleboro, MA  02703
508-222-6400
BrianHatch@HatchLawOffices.com

Hatch Legal Group
11 Park Street, STE 215
Attleboro, MA  02703
508-222-6400
BrianHatch@HatchLawOffices.com
HatchLegalGroup.com