Disability from Pregnancy - Work says "work, but don't work"

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Hey folks,

Recently had a child on an unexpected whim with an early delivery and my wife is set to go on Short term disability as part of their maternity leave. The way their policy works is they have an "elimination period" of 5 working days before the paid coverage will begin... However, the HR rep recently said that she cannot work or charge working hours during this time. The problem is, my wife does have plenty of work that needs to be done such as talking with people, transitioning projects, as well as teaching some people how to do these tasks. Many of these items absolutely must transition while she is gone, so it's not really an option.

That said, this "elimination period" doesn't coincide, since my wife is in fact performing work functions. She needs to be compensated for such work. She should not have to spend vacation time while she is effectively working.

Below is an EXACT quote from her HR person via email.
Unfortunately, you will not be able to work during your elimination period or on disability leave. Please communicate with your supervisor in regards to your pending tasks.
Translation: We want you to work, but you can't work (wink wink).

And that's the problem, communicating with your supervisor for transitioning work IS WORK.

I find this to be unacceptable and potentially illegal. Is there a case to be made here? I feel as though from a legality perspective, anyone that works should be compensated for working, simple.
 

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Also, from your post it's not clear whether the supervisor was actually informed of the policy. Not that this is necessa... (more)

marginoferror (Apr. 14, 2017 @ 10:37a) |

People like you/your wife are the exact people I would root out. Looking at everything literally and using phrases like ... (more)

UtahDealSeeker (Apr. 16, 2017 @ 3:29p) |

But it is one email. Telling her supervisor what irons are in the fire needing attention. Not detailing how to do each t... (more)

Glitch99 (Apr. 16, 2017 @ 3:58p) |

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Is she on FMLA?

Edit: nvm

Telling your supervisor that you can't work during the elimination period so whatever is hanging people will just need to figure it out doesn't really seem like "work". At most it's one email, a 5-10 min conversation. Obviously, you might burn some bridges this way depending on the circumstance and the supervisor's understanding.

Based on what has been said so far though it seems that this was pretty bad planning. Usually, you hand off all your work before the elimination period. And then you go through the elimination period of 1 week and then go on disability. Any possibility of moving the dates? Can't tell if this is leave before the birth or if the baby is already here...Obviously, if baby is here, you can't change it.

maca said:   Telling your supervisor that you can't work during the elimination period so whatever is hanging people will just need to figure it out doesn't really seem like "work". At most it's one email, a 5-10 min conversation. Obviously, you might burn some bridges this way depending on the circumstance and the supervisor's understanding.

Based on what has been said so far though it seems that this was pretty bad planning. Usually, you hand off all your work before the elimination period. And then you go through the elimination period of 1 week and then go on disability. Any possibility of moving the dates? Can't tell if this is leave before the birth or if the baby is already here...Obviously, if baby is here, you can't change it.

  
Week 26 delivery of a baby wasn't planned. In fact, there is no way to "plan" for that. Coincidentally though, we had everything mapped out and ready for our typical 40 week delivery. Sadly though, that plan failed 

It's definitely not one email, and a lot of it is transitioning, and almost teaching people. The backups are utterly clueless because they didn't do their own research on the items in which they were assigned to be backup for. 
kilacam19 said:   Is she on FMLA?
  
Not quite sure how to answer that - but I would think yes? She delivered the baby via emergency C-Section, thus I presume FMLA starts the moment that the delivery occurs.

Seems reasonable to believe that if your wife, her supervisor, and HR were in a 30 minute meeting together... that they'd come up with a solution that would satisfy everyone. I'd make that my first goal.

justignoredem said:   Hey folks,

Recently had a child on an unexpected whim with an early delivery and my wife is set to go on Short term disability as part of their maternity leave. The way their policy works is they have an "elimination period" of 5 working days before the paid coverage will begin... However, the HR rep recently said that she cannot work or charge working hours during this time. The problem is, my wife does have plenty of work that needs to be done such as talking with people, transitioning projects, as well as teaching some people how to do these tasks. Many of these items absolutely must transition while she is gone, so it's not really an option.

That said, this "elimination period" doesn't coincide, since my wife is in fact performing work functions. She needs to be compensated for such work. She should not have to spend vacation time while she is effectively working.

Below is an EXACT quote from her HR person via email.
Unfortunately, you will not be able to work during your elimination period or on disability leave. Please communicate with your supervisor in regards to your pending tasks.
Translation: We want you to work, but you can't work (wink wink).

And that's the problem, communicating with your supervisor for transitioning work IS WORK.

I find this to be unacceptable and potentially illegal. Is there a case to be made here? I feel as though from a legality perspective, anyone that works should be compensated for working, simple.

  I read that as saying: Tell your boss that you're going to be out.

OP - What do you think is the best course of action?

Technically she is not supposed to work but at the same time why burn bridges if she can provide a bit of help for a smooth transition. Usually employers are pretty decent and when you come back to work they will bonus you in some way or give some off the record days off which you 100% will need with a new child.

Have her do it at her ease remotely. It was an unexpected early leave.

stanolshefski said:   ...
  I read that as saying: Tell your boss that you're going to be out.


Exactly how I read it.

So, this doesn't sound like something nefarious from your wife's work; as you said, things were planned out well for a 40-week pregnancy then Whoosh! If she has a good relationship and is planning to return after leave, doing a little bit now goes a long way in showing her dedication. She is completely within her rights to just tell the employer "I'm not working" ... that's your legal option. If that's what you want to do but her employer will not let that happen, then there might be legal action that would need to follow. But if she's choosing to do the extra work because of her belief that it needs to be done, that's a different story.

So she is able to go on short-term disability and get paid for weeks/months for not working, yet you're concerned about spending at most an hour or two on the phone to hand-off her projects?

The entitlement... wow.

HR has boxes that they need to check in order to follow the law and company policy. Those aren't negotiable. If she wants to go on short term disability, she has to take the elimination period which means no paycheck for work hours during that time. If her boss doesn't get that, refer the boss to HR. The boss should have some sort of understanding for a pregnancy that was 14 weeks short. If not, then she works for a crappy boss and she shouldn't care that she's leaving him in the lurch.

Chargum85 said:   So she is able to go on short-term disability and get paid for weeks/months for not working, yet you're concerned about spending at most an hour or two on the phone to hand-off her projects?

The entitlement... wow.

  
Yes, she is indeed entitled to the maternity leave and short term disability she paid into while she worked there according the policy that they had in place.
Maybe if she was 3 months pregnant and not showing at her interview and her pregnancy didn't come up, then I would say she should go out of her way a little more for her company. But without that information, I just assume she's worked there for a little while and isn't gaming the system.

OP, not much to add, but congrats on the little one, I hope he or she is doing well.  All 3 of my kids were born early (32 weeks each) and that was a terrifying experience--I can't imagine a 26 weeker.  You and your wife have enough stress to deal with, she shouldn't be worried about work during this time.  They will get by without her one way or another.  She needs to focus on herself & your baby, no reasonable person would expect otherwise.  At most, she should draft an email to her supervisor with a status update on pending issues, but even that isn't a requirement.  She has in writing from HR that she is not allowed to work, seems good enough to me.

Chargum85 said:   So she is able to go on short-term disability and get paid for weeks/months for not working, yet you're concerned about spending at most an hour or two on the phone to hand-off her projects?

The entitlement... wow.

 America is the only developed nation in the world that doesn't guarantee paid maternity leave.  The entitlement lies with American businesses.  This woman just gave birth to a child that will be in the hospital for weeks, if not months in critical condition.  A child at 26 weeks can't be more than maybe 2.5  -  3 pounds.  The nerve of anyone to try to tell the mother that she needs to work right now is unbelievable.

raringvt said:   
 The nerve of anyone to try to tell the mother that she needs to work right now is unbelievable.

  HR specifically told her NOT to work. Now, if she hasn't really been doing her job well so far or the projects have been chronically mis-managed (thus nothing able to be "handed off"), that's a separate issue.

What if, instead of a few weeks early birth, she had died unexpectedly in a car crash? What would the business do then? Just close up shop, fire everyone, and go bankrupt?

Is it not the management's job (and OP's own wife's jobif she's a manager or project manager) to maintain policies to keep documentation and other sharing of knowledge on an ongoing basis so that work continues if someone must have an unexpected short or long term absence?

Bend3r said:   
raringvt said:   
 The nerve of anyone to try to tell the mother that she needs to work right now is unbelievable.

  HR specifically told her NOT to work. Now, if she hasn't really been doing her job well so far or the projects have been chronically mis-managed (thus nothing able to be "handed off"), that's a separate issue.

What if, instead of a few weeks early birth, she had died unexpectedly in a car crash? What would the business do then? Just close up shop, fire everyone, and go bankrupt?

Is it not the management's job (and OP's own wife's jobif she's a manager or project manager) to maintain policies to rewrite documentation and other sharing of knowledge on an ongoing basis so that work continues if someone must have an unexpected short or long term absence?

Birth at  26 weeks is NOT "a few weeks early".

39-40 weeks is full term.

I'm not saying that your other points aren't correct (about management needing to cowboy-up and figure it out) but let's not downplay the severity of what the new parents are dealing with.

At the end of the day its a long term job and you have the ability to help out, do it, if not just say you have too much going on and can't help out right now. If its a long term job and they value the employees, they will comp some additional days off later on.

Forward along the e-mail from HR to your boss with a note asking if all of you want to sit down in a meeting to get things sorted out.

Working while on short term disability may constitute as insurance fraud. Do at your own risk.

wilked said:   OP - What do you think is the best course of action?
  Does it matter what he thinks? He should probably let his wife manage her own career.

Putting out fires like is what supervisors are paid to do. It's not your wife's problem that the company hasn't properly trained its employees to cover for others. The way you tell it, it sounds like the company/organization will grind to a halt without your wife. What if she just decided she had enough and quit one day with no notice? Was hit by a car and incapacitated? These kind of things happen and it's the job of the company to be prepared to handle them.

tl;dr "sounds like a you problem"

Concern is that short term may not be paid out if they determine she was actually working when she wasn't. One thing is to work during vacation or regular sick time, another during short term disability.

Make sure if your wife makes a 30 minute phone call she gets paid for that day of work.

I had experience with this, they are very strict with short term disability for all kinds of reasons. I did an hour transition call with my manager when I went out 4 months early on maternity leave. The baby wasn't born then fortunately but we had all kinds of issues early on. And anyone that thinks you should just plan that far in advance is silly, most people don't need to plan that far in advance and wouldn't think to do so.

However, if your wife has any thoughts of returning, and can manage a call to transition with all that is going on, it might be helpful to avoid burning bridges.I would just be cautious about working full days or anything like that while on a leave. Like it was said, not the same as working while sick or on vacation.

GreyRabbit said:   Forward along the e-mail from HR to your boss with a note asking if all of you want to sit down in a meeting to get things sorted out.
  This, except I would change it to a call.

To OP - you just had a baby, congrats!! Does her supervisor know she was pregnant? If yes - I'd say she can just email saying she just had the baby and is going to have a tough time for the next several weeks. Honestly, if her supervisor is upset that she's not working, he/she has failed at life. The supervisor should understand the circumstances. A response from the supervisor of anything but complete support should be forwarded to his/her supervisor as it's 100% unacceptable (obviously dependent on the customs of the organization how she handles this). It means the supervisor has failed to connect on a human level and shouldn't be in a supervisory role.

That doesn't mean you need to draw a hard line saying I will not communicate with anyone, but maybe she should appoint someone she trusts to take over her role for a bit and that is the only person that gets to communicate with her during this period - and they can ask questions that they can't figure out themselves. Maybe the business loses a client, but this is a human life! I am fairly confident that the client will understand.

As far as legal options, etc. - worry about that later. Right now you each need to support each other and your focus should be on this. If not correctly setting up the situation for a lawsuit now means you lose a week of wages then so be it. Again, number one focus right now should be you, your wife, and your new child!

Also, from your post it's not clear whether the supervisor was actually informed of the policy. Not that this is necessarily an excuse, but if the supervisor said she has to work, just inform the supervisor that HR isn't allowing her to. The supervisor's response to *that* statement indicates whether the supervisor is requiring her to work but not get paid. This is not legal advice and the provision of legal advice would depend on your individual facts and circumstances, all of which are not outlined here. You should talk to a lawyer individually if you want legal advice.

justignoredem said:   Hey folks,

Recently had a child on an unexpected whim with an early delivery and my wife is set to go on Short term disability as part of their maternity leave. The way their policy works is they have an "elimination period" of 5 working days before the paid coverage will begin... However, the HR rep recently said that she cannot work or charge working hours during this time. The problem is, my wife does have plenty of work that needs to be done such as talking with people, transitioning projects, as well as teaching some people how to do these tasks. Many of these items absolutely must transition while she is gone, so it's not really an option.

That said, this "elimination period" doesn't coincide, since my wife is in fact performing work functions. She needs to be compensated for such work. She should not have to spend vacation time while she is effectively working.

Below is an EXACT quote from her HR person via email.
Unfortunately, you will not be able to work during your elimination period or on disability leave. Please communicate with your supervisor in regards to your pending tasks.
Translation: We want you to work, but you can't work (wink wink).

And that's the problem, communicating with your supervisor for transitioning work IS WORK.

I find this to be unacceptable and potentially illegal. Is there a case to be made here? I feel as though from a legality perspective, anyone that works should be compensated for working, simple.

  
People like you/your wife are the exact people I would root out. Looking at everything literally and using phrases like "potentially illegal" raises red flags and any forward thinking management would ensure that any dealings with you are handled carefully - causing delays and raising the cost of business.

Most companies have backup plans in place, even though that may not have been shared with your wife. And it is a common misconception that backups are clueless - If i had a dollar for every time I heard an employee of mine say that exact thing......

Bottomline- just do what most folks are suggesting here. Transition via email/conference call and let HR/supervisor worry about it. And congratulations on your kid and good luck with everything.

justignoredem said:   
maca said:   Telling your supervisor that you can't work during the elimination period so whatever is hanging people will just need to figure it out doesn't really seem like "work". At most it's one email, a 5-10 min conversation. Obviously, you might burn some bridges this way depending on the circumstance and the supervisor's understanding.

 

It's definitely not one email, and a lot of it is transitioning, and almost teaching people. The backups are utterly clueless because they didn't do their own research on the items in which they were assigned to be backup for.

But it is one email. Telling her supervisor what irons are in the fire needing attention. Not detailing how to do each thing, that isn't her concern.  If she's out on disability, it's her supervisor's responsibility to make sure things get done.  There is no wink wink you need to work without being paid stuff; they're telling her that if there's things she thinks might need attention, she can't take care of it herself, she can only tell her supervisor so THEY can take care of it.  She doesn't HAVE to do anything, they're telling you the most she can do - remember the question they were responding to, that there was stuff she wanted to take care of before leaving.

Either she is going on disability, or she is working through the pregnancy. It's one or the other, you can't have it both ways. I think you are misunderstanding this supposed "elimination period". Disability insurance does not pay for the first week of being disabled. So there will be one week of not being paid before the benefits kick in. And if you work, you are obviously not too disabled to work, so you cannot initiate a claim. Claiming disability while still drawing a paycheck would be fraud.



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