An employee is about to leave for maternity leave and has indicated that she intends to return as a 30 hr employee. She is currently a 40 hr employee and we need a 40 hr employee in that position. If we insist that she return as a 40 hr employee and she refuses, can we terminate her? Our company is very small, with only 5 employees. This employee's performance to date has been adequate but not outstanding, and the shortened hours she wants to work would create a hardship for the remaining staff.

Terminate seems extreme under any circumstances, regardless of regulations, with respect to this employee's situation!  If your company’s culture is one so unforgiving even during the birth of a child for an employee (which is a wonderful event), then I would REALLY BE FEARFUL if I was another employee: the "look at what they did to 'so-in-so', they just fired her; can you imagine what they will do to you or I?  That’s so unfair…bla-bla-bla…"  Before I get into any regulation issues, I would seriously consider the parameters that your company’s policy of acceptable workplace behaviors/actions/etc and I would review which violations of those policies actually warrant termination.  Really!

Then I would consider the federal and state regulations that might protect this particular employee.

1.      Federal FMLA:

a.      If she has worked for at least 12 months (can have breaks in-between service);

b.      If she has worked 1250 hours within the last year; and

c.      If you have 50 employees within a 75 mile radius

d.      THEN this employee is entitled to 12 weeks of protected leave, even on an intermittent or reduced schedule (seeing that she was full time/40hours prior to this event)

e.      Please see: http://www.dol.gov/esa/whd/fmla/index.htm

2.      State FMLA (CT FMLA):

a.      If she has worked for at least 12 months;

b.      If she has worked 1000 hours; and

c.      If you have 75 employees working at the company

d.      THEN this employee is entitled to 16 weeks of protected leave, even on an intermittent or reduced schedule

e.      Please review: http://www.ctdol.state.ct.us/wgwkstnd/fmla/FMLAstatute.pdf

3.      CT Antidiscrimination Law

a.      prohibit employers of three or more employees from refusing to grant employees a reasonable leave for disability

b.      Please review: http://www.laborlawtalk.com/showthread.php?t=203901&highlight=pregnancy+CT

 

Now if NONE of these regulations protect this employee, then I would consider the length, quality and loyalty of service of this employee in which she has serviced your company.  Then I would ask myself, “Even though we don’t have a Company Leave of Absence (LOA) Policy (unprotected policy) that we offer to our employees who don’t qualify for federal or state protection for any leave request, would I consider instating one and would I consider offering it to this particular employee?”  All the while I would be considering the effect my decision has on the budget, the culture (employee’s perception of how the employer treats them) and the “fairness factor” (have I acted in a manner consistent with being a “good-faith” employer) as then I would made the final decisions on this matter.

 

I have put in place at my company, which is multi-state, the federal/state FMLA regs where they apply and also I created a company LOA policy for those states and those employees who aren’t entitled to federal/state leave.  The company LOA policy is determined on a case-by-case basis and we consider the nature of the request, their attendance, their loyalty/commitment to the company, the impact on production, etc. as we make the determination.

 

I should have mentioned that the company I am discussing is very small, with only 5 employees, and this cutback in hours, from 40 to 30, would impose a considerable hardship on the other office staff.  

Although I strongly believe in being fair, consistent and allowing EEs to have a very active role; I also equally believe in the ER maintaining the authority to conduct business in a manner which focuses on the highest standards of quality, efficiency, productivity and team effort.  With that being said, I encourage EEs to voice their opinions and/or suggestions, but that ultimately the final decision resting with the ER because they have perfect knowledge (hopefully) of what it’s going to take to sustain the company now and in the future. 

If you believe this will cause an undue hardship on the other staff (I would talk to them about what they can support/handle and what they can’t – without focusing on her and her situation), then I would meet with this particular EE and inform them of that legitimate concern.  I would give a reasonable time away for the pregnancy, but I would arrange a plan for the return before she ever left.  I would basically give her the option of the 40 hours due to the amount of work that is required for this position, and if she refuses I would enter into a negotiation of sorts considering the options; perhaps a flex-schedule (working at home), making it two part time positions or transferring her somewhere else and hiring another full time person for that position.   I would make it very clear during the discussion that letting her have 30 hours and putting extra stress on the remaining team members is NOT an option and that an alternate plan MUST and WILL be devised.  Either she helps you achieve a satisfactory outcome or you determine it on your own.  If you’ve offered the leave and you have offered to work with her, but she is only willing to take (for the time off) and not contribute (negotiating a workable solution), then I would make a decision and inform her of her new responsibilities and new schedule.  I would hold her accountable to it and if she deviated, I would take the appropriate actions to rectify it, even if that means ultimately terming her.  If she is insubordinate, or refuses to work a scheduled shift or time, then that would be it for me.

In my opinion, no one person is worth the sacrifice of the team, regardless of how good they are!

I hope I have helped.

I'll add my two cents. First, with only 5 employees, the company is not covered by either the federal or CT state FMLA law. Second, Connecticut's Fair Employment Practices Act covers employers with 3 or more employers. It requires employers in Connecticut have to provide employees with a reasonable leave for pregnancy, and reinstatement to the same or an equivalent job. There are some other requirements but I think those are the most relevant at this point. 

My approach in this situation would be to explain what she is entitled to for maternity leave-reasonable leave, which would likely be defined as the period medically necessary (generally 6 weeks for a normal delivery and 8 weeks for a C-section). I'd fill her in on any paid time she has available and her obligations with regard to medical certification, and notification of the need for leave. You will want to consult your company's policies and established procedures with regard to time off and paid time off.

As a separate matter, I would let the employee know that I understand she has made a request to return on a part-time basis at 30 hours per week. I would tell her that the company is not able to accommodate the request. Because of the company's small size and the workload, the job will remain a 40 hour per week position. She will then either decide to remain full time or leave the company at some point. If she stays, you may have to address some attendance issues in the future if she doesn't maintain the 40 hours per week but it is jumping the gun to assume that will be the case.

 

 

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Barbie

It's always nice to have someone handy who knows local laws!

 

I see that you say this employee is adequate but not outstanding.  Consider this, in a Company of 5 people, an adequate employee may be a real shining example elsewhere: don't be in a rush to make a change because you could end up out of the frying pan and into the fire.  Generally, people have to perform better in smaller organizations as well as be better at dealing with ambiguity and uncertainty.  I would consider what this person does and how much of it is company internal knowledge for which an outsider would have a long learning curve.  What does this person do?  Is it possible to contract out or hire a very low hours part time person to take up the remaining 10 hours?  Perhaps this could be a 20/20 split.  The incumbant may not prefer that but it beats having no job at all and she can look for 10 hours elsewhere perhaps as a contract worker herself.