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.