Keep pregnancy in mind when scheduling to comply with laws
Published 07/29/05

Employers need to exercise caution when determining work schedules for pregnant employees in that if they fail to reasonably accommodate those employees, they may find themselves running afoul of state or federal pregnancy discrimination laws.

This point was illustrated in the Connecticut State Court case of Staci Davis v. Manchester Health Center, Inc . This case involves Ms. Davis who was a certified nursing assistant for a nursing home who lost her job as a result of her refusal to work in a particular wing of the nursing home out of concern for her own health and the health of her unborn child.

In September of 1998, Davis first learned she was pregnant. She conveyed this information to the defendant's management by early October 1998.

The nursing home facility is divided into several wings. Wings 1 and 3 are for long-term care patients who are unable to care for themselves and require considerable assistance from the nursing assistants and permanent placement.Wings 2 and 4 provide rehabilitation services for patients who will eventually return to the community.

On Sunday, November 29, 1998, the plaintiff reported to work and was scheduled to work from 3:00 p.m. to 11:00 p.m. on wing 2. Her supervisor informed her that she had been reassigned to wing 1 because the nursing assistant previously assigned to that wing that evening was absent due to illness.

Concerned with the heavier workload associated with wing 1, Davis informed the supervisor that she had cramps while working her shift on the previous day and that she could not tolerate working on wing 1.

Davis also informed the supervisor that the defendant's assistant director of nursing and the director of nursing previously told Davis that she did not have to work on wing 1. Expressing serious concern about her own health and that of her unborn child, the plaintiff offered to work that evening on any other wing but wing 1.

Davis believed that the patients in wing 1 were heavier, more combative, and more limited in terms of their physical activity. The supervisor, remaining steadfast in her insistence that Davis work in wing 1 that evening, refused to reassign Davis to any other wing, even when another nursing assistant, overhearing the dialogue between Davis and the supervisor, offered to work in wing 1 for Davis.

Then, in a loud and sarcastic note, the supervisor told Davis to "deal with it" or leave and never come back. Crying throughout the exchange with the supervisor, which took place within earshot of three other employees, Davis telephoned her husband and then left the premises.

The nursing home had in place at the time a policy that permitted employees to either "call out" and not report for the employee's scheduled shift due to illness or to leave their shift if they became ill during the shift without being discharged from employment. Davis was fired the next day notwithstanding her pleas to keep her job.

The jury awarded just under $75,000 in damages for a violation of the state pregnancy discrimination and as a result of her claim for negligence infliction of emotional distress claim.

This case should remind employers to carefully analyze with employment counsel their options before taking action against an employee for her conduct when it is related to, or claimed to be related to, her pregnancy.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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