“But That Would Create a Precedent!”

May 31, 2024

Challenge: “One of our employees is pregnant and has severe, all-day morning sickness. She wants to work from home and her job is one that can be done remotely. But HR is saying no because it doesn’t want to set a precedent. Many employees want to work from home and HR says that if we let her, we would have to let everyone do it so we don’t get accused of discrimination. HR also says that letting her work from home would violate our company policy and hurt productivity. Is there a way to let just her do it?”

Solution: I understand where your HR is coming from. Concerns about setting a precedent are common and come from the usually good rule of thumb that all employees should be treated the same to avoid discrimination claims and stave off morale-eating accusations of favoritism.

In this situation, it seems that your company has a precedent – that no one can work from home – and your HR is concerned that if it allows this employee to be an exception to the precedent, it will lead to a lot of unhappy employees who want to work remotely but are not allowed to do so.

HR leaders tend to favor precedents that say no employee can do a certain thing because such precedents provide an easy shortcut to decision making. Hard and fast rule, no exceptions, decision made. So this situation is asking your HR both to give up an easy solution and to deal with a lot of disgruntled employees – not a pleasant combination.

Nevertheless, I would advise your HR to let the pregnant employee work from home. With the new Pregnant Workers Fairness Act, your pregnant employee is entitled to a reasonable accommodation that will enable her to continue to work so long as it does not create an undue hardship for your company. What she has requested appears to be reasonable under the circumstances. It is hard to think of alternatives to working from home for someone who would probably have trouble commuting and who needs to be near a bathroom and be able to lie down, eat, and drink as needed.

Of course, HR needs to protect your company from legal claims. The EEOC has stated that a fear about other employees wanting the same accommodations does not create an undue hardship such that the employer can deny the accommodation. Denying your pregnant employee’s request on that basis would likely lead to legal action that your company would lose. The existence of a policy that prohibits working from home would not change this result – an employer’s policy cannot override an employee’s statutory rights.

Employees who are not covered by the PWFA can’t sue successfully under that law for discrimination if they are not allowed to work from home. So claims of discrimination are probably not a serious concern.

But what about accusations of favoritism? Again, this is probably not a serious concern. Your company has a legitimate, statutorily required reason for treating this employee differently, and HR can explain that to the other employees. They are not being singled out for unfair treatment.

But let’s not dismiss this idea of favoritism too quickly. Maintaining morale is essential to engagement, productivity, and retention. If there is a way to keep up morale, let’s look into it.

It sounds like so many employees in your company want to work remotely that HR is concerned about opening the floodgates of requests. Doesn’t that suggest that the company could benefit significantly from providing remote or hybrid work to all employees whose jobs allow it? It is quite possible that allowing employees to work in the way that is best for them will improve morale and retention, which can translate to better productivity.

And remote or hybrid work for all who want it (and can do it) can provide two bonuses: your company will no longer need to decide or administer accommodation requests to work from home, and your company’s diversity and inclusion efforts may be more successful.

Some corporate titans have voiced concerns about damage to innovation and culture caused by remote work, but research suggests that these concerns may be a bit overblown and it would be wrong to generalize about the effects of remote work in their corporations to all workplaces. Moreover, any negative effects likely can be mitigated by having some in-office days and by providing managers with training about supervising and motivating a dispersed work force.

Respected HR senior manager Jack Jampel has observed that precedents are rules based on past decisions and relying on them could lead to illogical or outdated decisions. He urges HR to consider each situation on its own merits because to do otherwise may result in irrelevant decisions and missed opportunities. That is very wise advice, particularly for this situation. Relying on precedent would result in an outdated response to your pregnant employee’s situation and could cause your company to miss the opportunity to retain and develop talented employees who want to work remotely.

© Cynthia Thomas Calvert.

Categories: Challenge Solver

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