Can I terminate a pregnant employee in state of virginia as it creates undue hardship for our small business with less than 15 employees?? Is there any legal implications?
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Can I terminate a pregnant employee in state of virginia as it creates undue hardship for our small business with less than 15 employees?? Is there any legal implications?
Hello [REDACTED]! Is the employee requesting any specific accommodations or time off?
We sent this email to the employee.... Ahoy, Ms. [REDACTED]! Our company policy allows a maximum of 6 unexcused unplanned days off per year. You have exceeded our maximum. However, we are aware of your pregnancy and have not listed this violation as misconduct on your performance record. Since our company offers one-on-one therapy to children with disabilities, frequent unplanned staff absences disrupts our client’s medically necessary treatment and causes undue hardship on the company. We are unable to accommodate your unplanned call-ins. We would love to make accommodations for you, however, we do not have any other positions that you are qualified for. We kindly request that you complete and submit the necessary FMLA Forms to request a temporary leave from work due to your disability. We understand that this may present an inconvenience, but please be assured that our primary concern is for your well-being and that of your unborn child. We also want to assure you that we will fully comply with all aspects of the Family and Medical Leave Act (FMLA) and provide you with the necessary support during your temporary leave of absence. We appreciate your contributions to our company and are committed to supporting you during this time. Whenever you are ready to return to work (either part-time or full-time), simply let us know. Should you require any further information or have any questions, please do not hesitate to contact us.
Got it! Legally speaking, you do not have to provide accommodations. The law says that you have to have 15 or more employees to be required to give accommodations (Code of Virginia Section 2.2-3905.) This means that if you have less than that, then you could offer time off or other accommodations to [REDACTED], but the law doesn't require you do anything in this case. FMLA requires you have FIFTY or more employees, so you would not need to offer that.
Great! Can I let her go?
She sent this email 2 days back... [REDACTED], I emailed you back 2 days ago about the leave of absence you are asking me to take, but per company policy I cannot take a leave of absence since we do not have any where close to 50 employees. I see the schedules go out each week and you not putting me on any of them is unlawful considering I am pregnant which you have deemed as unfit for the position I have. I have reached out to my attorneys because this is clearly a violation of my rights. We will speak soon. [REDACTED]
Ok got it - you don't have 50 employees, so the law just does not require FMLA leave. The law also says you don't have to provide accommodations since you have less than 15. This means that you could offer them, but it isn't legally required.
Last question: Are we legally safe to send this below email to terminate her? Dear [REDACTED]: You have requested accommodations due to your pregnancy. We cannot honor these accommodations for you, as they cause undue hardship on the business. We gave you the option to take an extended leave of absence and return when you feel that it is right for you and the baby, which you refused. Because you are unable to fulfill your job duties, your employment cannot continue. We hope you reapply when you are ready. Please be advised that you have 3 days from today to return all [REDACTED] property (including but not limited to tablets, lanyards, tally counters, interval timers, and t-shirts/uniforms). It is a criminal offense to fail to return company property. If you do not return the property within 3 days, you must pay the value of the items and a formal criminal complaint will be filed with the [REDACTED]. By law, you may not keep any client information or data, or contact any current or previous [REDACTED] clients after your termination date. After returning company owned items and collecting your belongings, you are no longer allowed on company property.
Hi [REDACTED], yes, that's just fine to send that and it's very clear what the rules are and in my opinion very professional.
Thank you!!
You are most welcome! Please come back if you have questions. We answer questions for small businesses all the time here.
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