Just Ask Jacob: Can we give execs more maternity leave than other employees?

Q Our company offers three weeks of paid maternity leave for the general employee population. We want to offer executive-level employees five weeks of paid maternity leave. Are there any issues with this policy?

A The federal government and individual states have requirements regarding family and medical leave. In Texas, the laws on maternity and family leave are identical to federal law. Other states have laws that go beyond the federal government’s requirements.

The federal Family and Medical Leave Act (FMLA) allows eligible employees to take job-protected leave for, among other things, the birth of a child or to care for a newborn, adopted, or foster child. But that is unpaid leave. Because your company is providing paid leave, you may provide leave in any way you see fit, as long as leave is not allocated in a discriminatory fashion.

Parental leave must be provided to men and women equally, meaning you cannot, for example, give female executives five weeks of paid parental leave and male executives only three weeks. The increase in paid parental leave must be provided equally to employees despite any protected characteristics (e.g., gender, race, and age) under federal and state discrimination laws. Executive status is not a protected category, so providing executives different amounts of paid leave than rank-and-file employees get does not violate discrimination laws.

Q We have a few nonexempt salaried workers who excessively violate our attendance policy. Can we discipline them by reducing their work hours? They would remain full-time, and their benefits wouldn’t be affected, but their annual salary obviously would be reduced.

A Yes, you can reduce the work hours of nonexempt salaried workers for violations of your attendance policy as long as you apply the punishment equally. Employees’ hourly rates may not dip below the applicable minimum wage in your area. Consider incorporating reduction-of-hours language in your written policy. However, it is important to make sure you do not punish some employees but not others for the same type of misconduct.

Q We hired a former volunteer for a part-time temporary position. She worked for five days and then didn’t return to work. Her manager attempted to reach her several times and then decided to terminate her based on our “no call, no show” policy. A coworker was able to make contact with the employee on social media, and she mentioned that she has some mental health issues. Do we have any obligation to start the interactive process at this point?

A No. Although your perception of the employee’s disability can trigger the interactive process, you did not know she had a disability until after she was terminated. Prior to her termination, she made no request for an accommodation, and you had no perception or knowledge of her disability. Thus, the interactive process was not triggered. However, if the employee applies for the position again and is rehired, you may now have knowledge of her disability and may need to consider providing appropriate accommodations.

Q Can we require an employee to get treatment for alcohol abuse even though he was never sent for testing? The treatment would be based on his known history.

A This is a complicated issue. If the employee’s alcohol use is not causing problems at work, you may have limited options. Alcoholism can be considered a disability under the Americans with Disabilities Act (ADA), which gives some protections to employees. Instead of requiring the employee to get treatment, implement a performance evaluation system to monitor for problems that may arise, and address problems as they become issues that affect your business. That way, you may be able to identify problems that affect job performance and help the employee get treatment when needed, even without a failed alcohol test. If the employee asks for an accommodation or admits to having an alcohol problem, you may have a duty to provide a leave of absence so he can enroll in a rehabilitation program.

Jacob M. Monty, the managing partner of Monty & Ramirez, LLP, practices at the intersection of immigration and labor law. He can be reached at jmonty@montyramirezlaw.com or 281-493-5529.