Q: The two of us run a small, struggling trucking company.
Everyone who works here has to be able to lift and carry freight weighing 50 to 75 pounds and push or pull up to 200 pounds on a dolly for distances. We make this clear to every employee at time of hire.
This year has been rough with one driver having an accident (not his fault) and another injuring his back. We have a long-standing policy of helping out injured drivers by offering them light duty. Since we have two drivers on light duty handling the phone and administrative tasks, we're letting each of them work half-days.
We hired "Mary" two months ago because we needed an extra driver. Last week she surprised us with the news that she's almost four months pregnant and said her doctor recommended we give her light duty work for the next five months. We're really happy for her personally but we can't keep her as an employee. Neither of the other two men will come off workers compensation for at least six weeks.
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When we told Mary we didn't have work for her, she said since we give injured workers office work, we're obligated to put her on light duty work as well. She said if we didn't she would have to work and then if something happened it would be on us.
If we assign Mary light-duty work, we'll have to pay her or one of the other two guys to sit home. Does it matter that Mary's new with us and the other two drivers have been with us for years? What do we do?
A: That depends on your company's policies, practices and current court rulings concerning the Pregnancy Discrimination Act (PDA), which requires that employers give pregnant women the same benefits and treatment as other employees.
In a landmark case, Reeves v. Swift Transportation Co., the 6th Circuit Court held that Swift's policy of assigning light-duty work to employees injured on the job while not extending similar benefits to pregnant employees didn't violate the PDA. Significantly, the court ruled in Swift's favor partially because they had a long-standing policy of assigning light duty only to injured workers. As a result, they didn't unfairly deny light duty to a pregnant worker.
Employment attorney Lee Holen cautions you not to move too quickly in your decision making. "What would you do if you had another truck driver injured and needing light duty, while the other two still are out? Would you allocate the light duty among all three or simply tell the third he or she is out of luck? You might make a case that you can't provide light duty out of business necessity. If you can show you only give light duty work to employees sustaining job injuries and never provide the benefit to drivers recovering from illness; Mary may be out of luck."
Finally, if you think Mary might injure herself on the job, don't let her work for you without a valid medical release given by a provider to whom you given exact details concerning Mary's job duties. You can't afford to the risk -- even if she threatens it.
-- Lynne Curry is president of Alaska's The Growth Company Inc. in Anchorage. E-mail her at firstname.lastname@example.org.