Question: We have decided to terminate one of our new hires due to significant absenteeism. The employee in question, however, just informed us that she has been missing a lot of work because she is pregnant. Can we still move forward with termination?

Answer: It depends. Before you take any action, consult with an employment law attorney who can advise you about the protections afforded pregnant women under the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act and other federal and state laws. The PDA, for example, expands unlawful sexual discrimination to include pregnancy, childbirth and pregnancy-related medical conditions. It prevents employers from refusing to hire, terminating or otherwise discriminating against a pregnant employee and stipulates that she be treated the same way other employees are treated. 

Before you terminate your pregnant employee, consider whether a work schedule adjustment or other temporary changes could solve the problem. The law requires that, before resorting to termination, you give her the same kind of reasonable accommodations you would provide another employee with a temporarily disabling condition.

If you’re experiencing other issues with this employee besides absenteeism, make sure you have documented how her performance has fallen short of expectations and the training and coaching you provided to help her improve.

Legally, you can’t fire someone because she’s pregnant, but you can let her go for legitimate, unrelated performance issues. Documentation of each prior issue – ideally signed by the employee – will help you defend against potential wrongful termination claims by pregnant employees. Records like these demonstrate that the underperformance continued despite your company offering opportunities for improvement and provide a legal, non-discriminatory reason for termination. In other words, you can show your decision was not based on the employee’s pregnancy or a related medical condition.