Can we switch a salaried employee to hourly to deal with pregnancy-related absences?
By Jan Hensel
Q. Our office manager, who is pregnant, has begun coming in late two or three times a week due to morning sickness. Because she is a salaried employee, we know that we cannot deduct from her wages for partial-day absences. Can we change her position to one that is paid on an hourly basis until she returns from her maternity leave?
A. If she meets the eligibility requirements, and if you employ more than 50 employees, your office manager may be entitled to intermittent leave under the FMLA for her morning sickness. The FMLA permits employers to deduct pay for intermittent leave without running afoul of the Fair Labor Standards Act’s salary requirements.
If she does not qualify for leave under the FMLA, be very careful in changing her employment terms and conditions during her pregnancy. You must be sure that pregnant employees are treated the same as any other employee who has a temporarily disabling condition due to reasons other than pregnancy.
Ohio law specifically provides that employment policies involving all privileges of employment shall be applied to disability due to pregnancy and childbirth on the same terms and conditions as they are applied to other temporary leaves of absences.
Furthermore, Ohio law specifically prohibits penalizing female employees because they require time away from work on account of childbearing.
Although Ohio law would not specifically prohibit you from changing this employee to an hourly position while she is unable to work a full schedule because of morning sickness, you should be aware that the Ohio Civil Rights Commission takes special interest in claims of pregnancy discrimination and applies the laws and regulations very liberally in favor of employees.
Your better choice would be to work with this employee to come up with a mutually acceptable solution to the problem.