How to Avoid Missteps When an Employee Goes Through a Divorce

Allen Smith, J.D. By Allen Smith, J.D. October 1, 2019

​Employers must walk a tightrope between being professional but compassionate with employees going through a divorce, while remaining in compliance with employment and benefits laws.

Sometimes employees going through a divorce falter and must be counseled on poor performance. Other times, they may need someone at work to simply listen as they talk about what they are going through.

Direct the worker to your employee assistance program if you have one, said Faith Stipanovich, SHRM-SCP, senior HR business partner with Matthews Cemetery Products in Pittsburgh. "Let the employee know that he or she does not need to go through this alone and that there are resources available that can assist with emotional support outside of family and friends."

Stipanovich said HR and managers can assist an employee whose work performance suffers as a result of a personal issue such as divorce by:

  • Providing personal leave time using paid leave or, if a policy for it exists, time off for personal reasons. Matthews Cemetery Products has a personal leave policy that lets an employee request unpaid time off work for up to 90 days if no other type of leave would apply.
  • Keeping the employee apprised of his or her work performance and pointing out issues if performance starts to slip.

"HR and managers should be careful to avoid assumptions, including the assumption that someone going through a divorce will be emotional or unstable [or] cannot take on additional work," said Katie Fechte, an attorney at Greensfelder in St. Louis. Company officials should not ask an employee about the divorce without him or her mentioning it first, she added.

It is helpful to know if the divorcing employee has a protection-from-abuse order, Stipanovich said. "We have offered to have a co-worker walk with the employee to their car at the end of the workday, [as well as] informed the receptionist that the spouse is not permitted on the premises and, if necessary, to call the police if the spouse does appear and will not leave when asked," she said.

"The employee needs to know they have the support of their employer," said Vanden Eykel, a family law attorney with KoonsFuller PC in Dallas.

Whenever possible, employers should offer flexible work schedules and approve time off to assist employees who need to attend court dates, participate in meetings with attorneys and arrange child care.

HR should consider whether the worker is experiencing mental health issues such as anxiety or depression that might be protected by the Americans with Disabilities Act or covered by the Family and Medical Leave Act, said Kristen Gallagher, an attorney with McDonald Carano in Las Vegas.

"Keep the discussions with you private," Stipanovich said. "HR and managers sometimes just need to compassionately listen to the employee. Don't give advice or scoff about what is being shared."

She added, "Know the signs of when the employee is reaching a high-stress point or when judgment mistakes are occurring, and let the employee know that you are concerned." She said such signs might include being inattentive, being sleepy or fatigued, having concentration problems or mood swings, being irritable, and acting out of character. "Do they lack concentration? Are they making more mistakes?"

Consistent Performance Standards

Employees who are going through a divorce should be subject to the same performance standards as any other worker. "If an employee [going through divorce] is disciplined for poor performance just like any other employee [with] poor performance, the discipline would likely not constitute marital-status discrimination, even if the poor performance is arguably related to the stress of going through a divorce," said Tina Bengs, an attorney with Ogletree Deakins in Chicago, Indianapolis and Valparaiso, Ind.

"Since the divorce process can create significant upheaval, simply providing a work environment that is consistent and provides some normalcy for the employee may be just the safe haven the employee needs," she said. "Also, by ensuring the employee understands the benefits and policies that may apply to the situation, the employee will be better able to plan and make informed decisions on how to maneuver through his or her personal circumstances outside of work."

Benefits Issues

Under an employer's group health plan, divorce is a COBRA-qualifying event. The initial COBRA notice should be addressed to the employee and spouse to show that the spouse was informed of his or her right to COBRA continuation coverage in the event of the divorce. When a spouse is removed from health care coverage due to a divorce, COBRA needs to be offered to the divorcing spouse at the time of the divorce.

[SHRM members-only HR Q&A: Divorce: What responsibilities does HR have when an employee is getting divorced?]

"If the divorce occurs within a short period of time from the date the spouse lost coverage because the employee removed the spouse from coverage during an open-enrollment period, the loss of coverage could be attributed to the divorce and the employer may need to offer COBRA continuation coverage to the former spouse," said Nicole Bogard, an attorney with Barnes & Thornburg in Atlanta.

An issue may arise if an employee keeps the former spouse on the employee's medical coverage and does not inform the employer of the divorce. This might happen because a court has ordered that the employee is responsible for paying for the former spouse's medical coverage and the employee is trying to keep those costs low.

The premiums for COBRA continuation coverage are significantly more expensive than the amount an employee pays for the regular group health plan coverage because the employer does not subsidize the cost of the COBRA continuation coverage, Bogard explained. "When the employer learns of the divorce, the employer would need to remove the former spouse from the group health plan coverage and may need to offer COBRA continuation coverage at that point to the former spouse," she said.

As for retirement plans, a qualified domestic relations order signed by the court must be provided to the retirement plan administrator for the employer to determine how to administer and divide retirement assets.



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