A valued staff member is expecting. How do you protect the mother-to-be, the baby ... and your practice?
Bent Ericksen
She comes in to see you with a glow on her face and excitement in her voice. "I wanted to share my good news with you," she says. "Doctor, I`m pregnant!"
With women making up the lion`s share of most dental teams today, you`ve probably heard this happy announcement a time or two. But did you realize that how you respond could set you up for potential liability?
Like most doctors, you probably are not familiar with the federal and state laws prohibiting discrimination on the basis of pregnancy, childbirth, and medical conditions related to pregnancy. Most doctors only learn about these complicated regulations when it is too late.
Take, for example, the pregnant staff member who went on maternity leave from one practice. When she did not return to work at the end of the legally required time off for a maternity leave, the doctor hired a replacement.
Three months later, when she informed the doctor of her desire to return to work, the job was no longer available. She sued for pregnancy discrimination - and won.
The court ruled in the employee`s favor because the doctor had failed to inform her of the date on which the maternity leave would end. (Had that date been specified in writing, her failure to return by that date would have constituted a resignation.) The doctor had to pay three months` back wages plus penalties - a total of $7,600.
It`s the law
Dental practices are subject to the Pregnancy Discrimination Act (PDA). In general terms, this federal law is applicable to employers with 15 or more full-time, part-time, and temporary employees. To complicate matters, several states have implemented their own pregnancy regulations, some with stricter terms. In California, for example, the law applies to employers with five or more employees.
The PDA makes it unlawful to deny employment, type of work, a promotion, or to fire a woman because she is pregnant. Employees with pregnancy-related disabilities must be treated the same as other employees with temporary disabilities.
Under the law, you can request that the mother-to-be give reasonable notice about the beginning date of her maternity leave. Reasonable notice usually is defined as 30 days before the start of the leave, or the employee`s most reasonable estimation of the starting date. You may request written verification by the employee`s physician about the nature of the "disability" and the return date - but only if this procedure is required for employees with other temporary disabilities. Be sure your staff-policy manual spells out this requirement.
Protecting everyone
It is natural to want to protect the mother and baby, so you will be inclined to remove the employee from potentially harmful tasks and to place her in a less risky position in the practice. But beware, this act of compassion also can have legal ramifications. A 1991 U.S. Supreme Court decision ruled that "unless the pregnant employee specifically requests a job accommodation or transfer to another position, employers may not refuse to allow a woman to perform certain job-related duties - even though there could be a potential harm to the woman or the fetus."
You do face a catch-22 if the mother-to-be insists on doing the job despite the risks. You cannot legally refuse to let her work and you cannot move her to a less hazardous position unless she requests it - a request that should be documented in writing. Yet, you may later be held responsible for any injury or damage to the mother or her child.
In one case, a doctor inadvertently stepped back from the chair and collided with the eight-month-pregnant dental assistant. Shortly, thereafter, the employee suffered a miscarriage, which she claimed the doctor had caused by allowing her to work in such close quarters in her condition. The case was settled out of court at great expense to the doctor.
The best way to protect both the mother and practice is to prepare a "Health Hazards During Pregnancy" release letter. The purpose of this letter is to inform the employee that her continued work in the practice could pose a significant risk to her baby. The letter allows the employee to indicate, by her signature, that in assuming such risks, she is willing to take full responsibility for any consequences. You also can work with a consultant or your attorney to compose such a letter
It is understandable that a pregnant woman may not want to continue working in a potentially harmful environment. If she requests a change in her present duties or a transfer to a less hazardous position, you must attempt to accommodate her. If, for business or economic reasons, an accommodation is not possible and the employee cannot or will not perform the essential requirements of the job, you may need a human resources professional or legal counsel to advise you on how to proceed.
In one practice, a pregnant dental assistant refused to take X-rays or perform several other duties required of a dental assistant. When the dentist requested written verification from her physician that she could not perform certain job functions, he received her doctor`s note stating the following: She should not be on her feet for more than 15 minutes at a time; all stress should be eliminated as much as possible from her work environment; and she should be allowed to be late for work or leave when she so desires to accommodate her disability. To complicate matters, the employee refused to sign a "Health Hazards During Pregnancy" release letter.
Obviously, the employee could not fulfill the job responsibilities specified in her written job description. Because she was the only dental assistant in the practice, the doctor determined it would cause a severe hardship if her special needs were accommodated. So, he placed her on a pregnancy disability leave and hired another assistant to fill the position. (Note: If the leave starts early in the pregnancy, the employee will have used up her legally allowed leave time and will not have any "return to work rights" after the baby is born.)
This doctor`s employee claimed pregnancy discrimination and took the case to the Labor Board, which ruled in the dentist`s favor. The only thing that saved the dentist was that he had a properly written job description that spelled out the essential requirements of the job.
In this case, the employee went on disability leave and was able to receive state disability insurance. In the seventh month of her pregnancy, she tragically lost the baby. If the dentist had accommodated her and allowed her to work - even in a limited capacity - it is very likely he would have been blamed for the miscarriage and charged accordingly.
Most employees wish to keep working as long as possible before going on maternity leave. In one case, the staff member informed the doctor that she wished to keep working as close to the delivery as possible. She accomplished her goal successfully. The miracle of birth took place right in the operatory ... with the dentist and staff serving in a capacity that was not included in their job descriptions!
Salary and benefits
A pregnancy disability leave is generally given without pay. At the employer`s discretion, any earned paid sick or vacation benefits may be used at the beginning of the leave. Employee benefits may be discontinued and do not accumulate during the leave. The employee can continue medical insurance by paying the monthly premium directly to the employer or to the insurance company. However, benefits must be given to employees on a pregnancy disability leave to the same extent that they are given for absences resulting from other temporary disabilities. Seniority continues to accrue during the leave.
Note: The Family Medical Leave Act (FMLA) covers employers with 50 or more employees. Some state regulations vary. Oregon`s Family Medical Leave Law, for example, applies to employers with 25 or more employees. For information about FMLA, contact the Department of Labor, Wage and Hour Division, Washington, DC.
Re-employment rights
Title VII of the Civil Rights Act of 1964 requires that a pregnant woman`s job must be held open for her return. This means that employees returning from a pregnancy disability leave are entitled to return to their former or a similar position. They also are entitled to return at the same level of authority, number of hours, and pay - unless the job is no longer available, due to a legitimate business reason unrelated to the pregnancy. (The employee does not have to be returned to the same, exact work schedule, such as the same days of the week, hours, etc.)
If you and the employee agree on a return date, you must reinstate the employee no later than that date. Employees will remain on a leave of absence until the employee provides a physician`s written statement indicating the employee`s fitness to return to work at full capacity.
The employee does not need to be reinstated if:
x The employee directly or indirectly informs the employer that she does not intend to return to the practice.
x The employee is working elsewhere while on leave.
x The employee has been on a medical leave of absence beyond the approved time.
x If, for business or economic reasons, the job is not available. (Note: You are not likely to prevail in court unless the reasons are truly convincing. Death or bankruptcy - and not much else - are good reasons.)
Crucial steps
As you can see, crucial steps must be followed in managing the work conditions and terms of an employee`s pregnancy leave - not the least of which is the coverage of her health-care benefits according to your practice policy. Following these steps will help you manage a delicate and potentially costly situation if it is mishandled. Armed with these essential human-resources tools, when you hear the joyful news, "Doctor, I`m pregnant," you now can say, "Congratulations! Let`s meet so that we can discuss what needs to be done regarding these next few months on the job."
Bent Ericksen, CEO of Bent Ericksen & Associates, is a well-known expert in human-resources management in dentistry. He is strategically aligned with eCheck-Up and works closely with numerous dental consultants across the country. A "Health Hazards During Pregnancy" release letter is among the personnel forms offered by his company. Erickson may be reached by phone at (916) 933-5117 or by e-mail at bentericksen@earthlink .net. To receive a free copy of his "Implementing the Perfect Incentive Program," call (877) 942-7267 or visit www.echeck-up.com.
