Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP, tests your knowledge with this Mother’s Day quiz.
Happy Mother’s Day weekend! How much do you know about moms in the workplace? Take our quiz and find out! As always, the answers appear at the end of each question, so you can cheat all you want. (But don’t tell your mom.)
At the end, there’s a bouquet of roses, just for you.
Ready? Here we go:
No. 1: Your best, most indispensable employee unexpectedly comes to you and tells you that she is pregnant. The baby will be due during your most hectic time of year, and you honestly don’t know how the work will get done while she is out. What is the best response?
- Great.Having you out of work for 12 weeks is just what I need right now. Not.
- You know, the times, they are a’changin’. You should let your husband stay home with the kid. I’ll even have Purchasing get you a footstool so you can put your feet up while you work.
- Congratulations! That is wonderful news. I’m really happy for you.
- How could you do this to me? Did you forget your birth control, or did it just fail?
ANSWER: 3. No matter what, 3 is always the correct answer.
No. 2: You hire Mary for a loading dock position. Her first week of work, she tells Human Resources that she is five months pregnant and has been told by her obstetrician that she can’t lift more than 10 pounds. The loading dock job requires employees to be able to lift up to 100 pounds. What do you do?
- Consider whether her lifting restriction can be accommodated, and discuss it with her. Consider transferring her to a non-lifting position if you have a vacancy for which she is qualified. If Mary can be accommodated, accommodate. Otherwise, if you offer light duty to employees with work-related injuries, consider offering a light duty position to her. If none of those options is available, place her on a medical leave until the situation changes.
- Fire Mary for failing to disclose her pregnancy when she applied for the job, or at least tell her that you’ll never be able to trust her again.
- Put Mary on leave under the Family and Medical Leave Act.
- Ignore the doctor’s note and make her keep lifting 100 pounds. It’s her fault for not telling you that she was pregnant before you hired her.
ANSWER: 1. Since at least 2015, when the U.S. Supreme Court issued its ruling in Young v. United Parcel Service, employers have been required to try to accommodate pregnancy-related restrictions if they accommodate employees with similar restrictions that are not pregnancy-related. The Equal Employment Opportunity Commission (EEOC) takes the position that if an employer offers “make-work” light duty for on-the-job injuries, it must do so for employees with pregnancy-related restrictions. (NOTE: The Supreme Court ruling did not go that far, and I’d love to see an employer challenge the EEOC’s position, but as yet no one has.)
Mary is not eligible for FMLA leave because she hasn’t worked for you long enough. And requiring an employee to violate known medical restrictions is a terrible idea.
No. 3: Janet’s 30-year-old daughter, who lives across the country, is expecting. Janet asks to take two weeks off to fly out and stay with her after the baby is born. Janet has worked for you for seven years and has never taken FMLA leave. Which of the following answers is legally incorrect?
- Congratulations! I hope everything goes well. Of course, you can take FMLA leave for your daughter and new grandbaby. Please give your daughter our best, and give that baby a big kiss from us!
- Congratulations! I hope everything goes well. You don’t qualify for FMLA leave, but of course we’ll be glad to give you two weeks off. You can use your vacation time or PTO if you want to be paid, or if you’d prefer, we can give you a two-week unpaid “non-FMLA leave of absence.” Either way, we’ll be here for you when you get back, and don’t forget to bring lots of pictures of that beautiful baby!
- Congratulations! I hope everything goes well. Unfortunately, your time off would hit right at our busiest time of the year, so I’m gonna have to say no. Please give our best to your daughter, and have her email some pictures of the baby!
ANSWER: 1 is legally incorrect. Janet’s leave would not be covered under the FMLA because it’s for an adult daughter, and FMLA leave for adult children is not available unless the son or daughter (1) has a serious health condition, and (2) is “incapable of self-care because of a physical or mental disability.” “Disability” is interpreted the same way it would be under the Americans with Disabilities Act. (For more on adult children and the FMLA, check this out.)
Assuming a normal delivery without complications, Janet’s adult daughter’s childbirth would not qualify Janet for FMLA leave. (If Janet’s daughter were 16 years old, it would be a different story.) And, of course, FMLA leave is not available for grandchildren.
(Even though 3 is legally correct, we much prefer answer 2.)
No. 4: Janet’s co-worker, Margaret, has a 28-year-old son who has been working as an expatriate in Belarus. Margaret just learned that her son has been diagnosed with lung cancer. Margaret asks for an extended leave of absence to go to Belarus and help care for him while he undergoes chemotherapy and radiation treatment. Like Janet, Margaret has worked for you for seven years and has never taken FMLA leave. Which of the following answers is legally incorrect?
- I am so sorry. Of course, you can take FMLA leave. Here is the paperwork. I realize it may take a while to get it all completed by your son’s doctor in Belarus. Just get it completed and back to us when you can. You have 12 weeks of job-protected leave available, and if you still need to be out there afterward, let us know, and we’ll try to work with you. We’ll keep you and your son in our thoughts and prayers.
- I am so sorry. I hate to give you any more bad news, but because your son is an adult, you do not qualify for FMLA leave. Under the law, you can take FMLA leave for an adult child only if (1) the child has a serious health condition, and(2) the child is “incapable of self-care because of a physical or mental disability” within the meaning of the ADA. Your son meets the first requirement, but not the second. Of course, we’ll still let you take a leave of absence to go to Belarus, and we can hold your job for a few weeks. You’re welcome to use your vacation or PTO until it’s exhausted. We’ll keep you and your son in our thoughts and prayers.
ANSWER: 2 is legally incorrect. In this case, the employer is taking too narrow a view of “disability.” Cancer is both an FMLA-qualifying serious health condition and an ADA-covered disability. Therefore, at a minimum, Margaret should be given the full 12 weeks of job-protected FMLA leave.
No. 5: Tiffani, who is one occurrence away from termination for attendance, asks for two hours off so that she can attend the parent-teacher conference for her bratty third grader, Iodine. What do you tell Tiffani?
- We cannot authorize any more time off for you until an occurrence comes off your record. To do that, you’ll need to have perfect attendance between now and July 15. Can you get the school to move Iodine’s conference until late July? Oh, yeah, I forgot — school will be out then. Maybe next September?
- Go ahead, but we’ll need documentation from the school, and you’ll need to be back here in two hours.
- Do whatever you want, but keep in mind that you are one occurrence away from termination, and this would be an occurrence.
- Let me check with our company’s lawyers, and I’ll get back to you.
ANSWER: 2, in many jurisdictions. In some states, employers are required to allow parents to take a limited amount of job-protected time off to attend their children’s school conferences. Many of these laws allow the employer to ask for some sort of documentation. If you aren’t sure about the law in your jurisdiction, 4 is a perfectly fine answer, too — although I probably wouldn’t mention the lawyers.
No. 6: You are manager of an upscale kitchen store at the local mall. One of your sales clerks, Sophia, just returned from maternity leave. She is nursing and needs to take breaks during her shift to express milk. Your store doesn’t sell clothes, so you don’t have any dressing rooms. There is one small office in the back with a video surveillance camera and a door that doesn’t lock. The rest of your space is open to customers. What do you do?
- Tell Sophia that she’ll just have to “hold it” until she gets home from work.
- Tell Sophia to use a stall in the mall bathrooms.
- Tell Sophia to go down to The Gap and borrow one of their dressing rooms.
- Go to the hardware store, buy a bar lock, attach it to the office door in the back of your space, and ask your Regional Manager for permission to turn off the video surveillance camera in the office (or to securely cover the lens so that any video is completely blacked out). If the Regional Manager says no, appeal to HR. Teach Sophia how to turn the video camera on and off (or to cover the lens) so that she can do it herself and assure herself that she has complete privacy. Then let Sophia use the office. And don’t forget to get reimbursed for that bar lock!
ANSWER: 4. Lactation breaks can be difficult for retail stores because of limited space, customer access, and video surveillance. In one lawsuit brought under the Nursing Mothers Act, the manager allegedly told the mother to throw a towel over the surveillance camera. That is not good enough. If a video camera has to be covered, the employer should make sure that the lens is really covered — in other words, that no light (and inadvertent recording) seeps through. It’s even better if the employee can be taught how to turn the camera on and off so that she is in control of her own privacy.
- 5-6 correct: Perfect in every way! You are “Marmee” March!
- 3-4 correct: Good! You are Aurora in Terms of Endearment. A little quirky, but you would do anything for your daughter.
- 1-2 correct: “Yes, Mommie Dearest.”
- 0 correct: Eeek! Throw Momma From the Train!
Just kidding! You all did great! And here’s that bouquet of roses I promised you.
Awwww. Now I’m feeling sentimental. Happy Mother’s Day weekend to you and yours!
Want to Know More about FMLA?
ThinkHR customers can log into Comply to learn everything they need to know about FMLA; get checklists, forms, and resources in an employee leave toolkit; get linked to federal and state-specific protected leave regulations; and watch a webinar on avoiding leave mistakes.