Maternity

[Sarahg]

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Hi All,

I have a situation at work. A employee does not want to go on Maternity leave. So instead she negotiated with her Manager to have Annual Leave up till the day she has the baby and then commence working from home 4 days after the birth.

Now correct me if I am wrong.
- A employee does not have to take Maternity Leave or any time off? some people say 6 weeks is required?
- My understanding is for the employee to work at home we (As the employer) will need a WorkCover Medical Certificate or a letter from her doctor to say she is fit for employment? (as this is guided by WorkCover NSW legislation etc)

The employee is refusing to get a MC..!

If we dont get a MC, and she starts working 4 days after the birth and say she has a hermridge or something etc.. arnt we liable, because we have put her at risk?

What are our obligations as the employer?

What are the employees obligations?

Thanks - all help would be great!

Sarah

[Lisa-Jane]

Hi Sarah,

Without knowing all the particulars I believe she would be required to take six weeks off work following the birth. Subdivision D of the Parental Leave section of the WorkPlace Relations Act, covers this. I have inserted a section from the WorkPlace Relations Act.

Subdivision D—Maternity leave: from start to finish
273 Requirement to take leave—for 6 weeks after birth
A continuous period of leave including (or constituted by) ordinary maternity leave must include a period of leave of at least 6 weeks starting from the date of birth of the child.

Hope this helps.

Regards,

Lisa-Jane

[jba]

Is this person for real?.........she may like to consider having the baby during morning tea break ................good reply Lisa

[Ms_HR]

Hi Sarah,

Lisa Jane is correct in regards to the 6 week period however this only applies to organisations that are deemed to be a corporation (pty ltd) under workchoices. the 6 week period can be any type of leave including maternity, annual or long service but must start from the child's birth date.

It is a very good idea to request a MC before the employee returns to work to state that they are fit for duties from an OHS point of view.

Do you have a working from home policy in place? is there any written agreement? WorkCover have a guide to obligations and information about working from home arrangements

(http://www.workcover.nsw.gov.au/NR/r...s_comp_220.pdf)

hope this helps

Regards

Ms HR

[Sarahg]

Hi Lisa Jane,

Thank you for this information. I have an understanding of this clause. But in this situation, she is not taking Maternity Leave, so my thoughts are that this would exclude her?

Hi Ms HR,

Thank you for your feedback. Yes, we are a corporation under WorkChoices and we do have a working from home policy. In terms of agreement, dosent the offer letter cover this? I know there has been cases where it dosent, but what more can I do, get her to read and sign the policy.. I doubt she will! Its hard enough trying to get MC for OHS purposes.

My thoughts again on the Medical Certificate. Because it is not a Workers Comp related injury etc, my understanding is that she does not have to provide us with anything from the doctor if she dosent want to. You can relate this to another scenario, eg a employee breaks leg outside work, the doctor provides the person with a MC stating s/he is unfit to work. But think about it, does a employer ask to see this certificate?? No.

Thanks,

Sarah

[Ms_HR]

Hi Sarah,

The "Maternity at Work" brochure that is published by the Office of Industrial Relations states:

"if you are employed by a 'corporation' the federal Work Choices Law now requires that if you plan to take maternity leave it must be for at least six weeks starting from your child's birth date. This leave can be any type of leave, including maternity, annual or long service.

It would depend on the type of work that she is doing but i would be arguing based on the employers obligations under OHS. In regards to the non-work related aspect. How is the employer meant to provide a safe work environment if they are not aware of any medical restrictions etc.

You reason for asking for the MC is so that you have documentation that confirms if she is fit for work or not. As the employer you are asking for confirmation of their 'fitness' for work not whether they are unfit.

If they are unfit for work they should be utilising peronsal leave entitlements therefore most organisations require medical certificates in order to access these entitlements.

My experience with working from home policies are that there are a number of considerations to look at, particulary your liability in regards to workers compensation and OHS. You should have a written agreement between both the organisation and the employee outlining the terms and conditions of working from home arrangements?

Another consideration is that working from home arrangements should not be a substitute for child minding. Does she intend on caring for the child whilst working from home and what impact will this have on her ablity to complete the requirements of the role?

Sorry if a bit of overkill...but it's just like a can of worms!!!!!

Regards


Ms HR

[rockyhr]

Wow...what an issue.

I worked with a lady who did not believe in maternity leave....and no matter what way you look at it her view was that a year or so out of the workplace means she loses the opportunity to experience work issues/challenges that she may have experienced if she was at work and therefore she felt she would be behind the eightball particularly in a merit work environment. and that wsn't in a workplace that was highly competitive.

anyhow I had a similar case recently and was forced to go down the OH&S road remembering the organisation's duty of care to provide a safe workplace. My issue was more about the person going onto maternity leave...with issues arising about the persons health and wellbeing, her capacity to work safely in her condition. She was experiencing complications but she was refusing to go early.


In the end because of our duty of care obligation we required her to go to a company doctor to advise on whether she was fit to perform her job or whether there was the opportunity for reasonable adjustments. Fortunately the event worked well as the doctor had a lot of influence inher coming back and voluntarily going early... a good outcome. However the requirement under antidiscrimination to for the person to be able to fulfil inherent requirements of the job and for an organisation to provide reasonable adjustments to enable this. This is a case by case situation and depends on the business. What is reasonable for a large business may not be reasonable for a small 10 person operation. It comes with risk however.

The medical profession, when suitabily informed about a persons job can provide effective advice and this is hard to dispute in court when it is undertaken for the right reasons.

It is a risk assessment situation no doubt about it but fundamentally I believe we have a duty of care obligation to provide a safe workplace. I understand that where we deem there is reasonable information that gives doubt to a person being able to work safely, we can instruct an employee to see a doctor to confirm that they are fit for duty or advise on adjustments. ...however in our organisation it may need to be our doctor and in our time though. Due to privacy legilsation the doctor can only really advise on any management interventions rewuired, not anything that is considered private and irrelevent to the business at hand and the persons ability to do her job.

The risk I guess however is that she may see your actions as an intentional way to discriminate against her.

Good luck with that one though.

[Danvic]

I have been asked a question from my Managing Director.
We currently have two staff members who are pregnant (they work in the same team and are due within a week of each other)!!!!

They are taking a fair bit of time off for medical appointments etc.

Is that classed as sick leave or should it be annual leave?

My boss doesnt want to dock them for there hours or be anal about it but it has added up to be a heap of hours.

Thanks in advance

[jba]

If these ladies are employed full time and in a permanent capacity and they are producing medical certificates they are entitled to use personal leave..............ie sick leave

[Danvic]

Many thanks for your quick response

[Ms_HR]

Hi Danvic,

There is no law that says an employee must use their sick leave for pre-natal check ups when you are not sick. If an employee needs to attend a check up during work time this is something that can be negotiated between both the employer and employee.

the options could be sick leave, annual leave or maybe a time in liue arrangement etc.

hope this helps

Ms_HR

[rockyhr]

I'd agree with JBA on that one.

It wouldn't be any different if you had an employee who needed ongoing treatment for a medical condition. If they need the time off and the doctor certifies this and the employee claims it as such. If however they have exceeded their sick/personal leave provision then the negotiation approach suggested by Ms_HR would seem appropriate.


Rocky_HR

[HRbeat]

Hi Sarah G,

In our organisation, we have a policy on flexible work arrangements that says employee-initiated flexible work arrangements will be considered based on role requirements, business requirements, and around personal requirements. It is a triangular approach that allows us to still manage the business but still look after the well-being and whole of life balance of our employees.

It will mean we have to ask the question whether the role can be performed predominantly on a work from home basis (based on the information you have stated). If not, are there any other roles that is available that the employee is willing to consider to allow her to work from home? Are business requirements and objectives able to be achieved on a work from home basis?

The discussion on MC is really around an employer's duty of care as sufficiently explored above by other forum members. If however your employee agrees to come back to work (not on a work from home basis), there is an ongoing obligation of duty of care at work. By taking a whole of life balance approach, you should at least be able to provide facilities or assistance for breast-feeding breaks or something. I'm not a mother yet so I'm not sure what's really required during the day...you know when people actually use breast pumps? (I hope I don't get kicked out of here for being too detailed like this!)

On a work from home arrangement, they can easily do those things and can be flexible in a comfortable setting. If you insist on reporting for work in the office, you might consider the suggestion above also based around practicalities for your organisation.

I strongly suggest that you spend time to sit down with your employee and ask her what the reasons are behind the recommendation to work from home and for coming back early or not taking maternity leave. Maybe something could be arranged that still meets both business and personal requirements without a strong need for working from home or not taking maternity leave. My principle in dealing with employees is always about understanding their reasoning behind their behaviours or what they are communicating initially. Sometimes, the principles behind are easier to deal with and facilitates more opportunity to explore options with the enployee.