Can a small business require a salaried physical therapist employee to start her unpaid maternity leave two weeks before her due date citing low patient load?
Your question is interesting. What you can do is sometimes different than what you should do.
Typically, women take maternity leave starting at a time they feel they need to leave, which could be prior to the birth for medical reasons, but most commonly starts when the baby is born.
In any case, it has nothing to do with the patient load of your business.
You might consider asking your employee if she’d like to scale back (work part-time) until her leave starts (her choice), or start her leave early. However, since it’s unpaid leave, there’s no incentive for her to do either.
Requiring her to begin leave before she needs to may violate the pregnancy discrimination act. If you lay her off two weeks prior to her leave, you’ll likely have to pay her unemployment and may even be slapped with a discrimination lawsuit by her (unless you’re laying everyone in her same position off at the same time). A court will find it suspicious if the only person you’re laying off is the pregnant one!
Since I don’t know the exact size of your firm or what state/county you’re in, other state and local requirements may come into play like paid sick leave laws or parental leave laws. This is a case where you may want to contact your labor law attorney for advice, as we can’t provide legal guidance (we’re not attorneys).
So yes, you could force her to start leave early due to the business slowdown and risk a lawsuit (from her). The better option is to let her know what you’re up against and see if she’d like to reduce her hours or take leave early. As long as it’s her choice, there’s little risk to you.
SPHR, HR Writer