Published in the Union Leader – October 2012
Q: I have a New Hampshire employee out on maternity
leave. She is expected back at work in a couple of weeks. While she
has been out, I hired a temporary worker to fill the
position. The temporary employee is a much better worker than
my employee who is out on leave. Can I keep the temporary employee
and let my other employee know that I no longer have a job for
her?
A: The answer is no. You would be violating the pregnancy
protection laws in New Hampshire if you took this action. Even if
you prefer the worker who temporarily fills the employee's
position while she is on maternity leave, you must allow the
employee to return to work.
Under New Hampshire law, an employer (with 6 or more employees)
must permit a female employee to take a leave of absence for
periods of temporary physical disability resulting from pregnancy,
childbirth or related medical conditions. When the employee is
physically able to return to work, her original job or a comparable
position shall be made available to her unless business necessity
makes this impossible or unreasonable. This test of impossibility
or unreasonableness is a pretty high standard to meet, and liking
the replacement employee more would not meet the test.
Each year, the New Hampshire Commission for Human Rights receives
many calls and complaints based on violations of pregnancy
discrimination laws. In addition of the right to return to work
described above, for all other employment related purposes
including receipt of benefits under fringe benefit programs,
pregnancy, childbirth and related medical conditions shall be
considered temporary disabilities, and a female employee affected
by such conditions shall be treated in the same manner as any
employee affected by any other temporary disability. For example,
if other workers are paid for time away from work due to a
temporary disability, you must apply the same policy for disability
due to pregnancy. Employers make other mistakes such as forcing a
pregnant employee to stop work at a certain time without medical
input, taking negative action against a pregnant employee for
attendance problems caused by the pregnancy, or requiring the
pregnant employee to provide medical documentation that is not
required of other employees with a temporary medical issue.
The New Hampshire Commission for Human Rights has some helpful
guidelines to assist employers in understanding the rights of
pregnant workers. These can be found at www.nh.gov/hrc.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.