How to tweak your contract if you’re hoping to get pregnant
As a company run by 20 and 30-year-old women, we very much so understand the planning and consideration that must be made when building creative businesses that will work with having children.
This was a question we got in our annual survey and was something we felt passionate about writing about because we know there are not a whole lot of other law firms which understand the challenges of having a family and running a creative business.
So today we have a number of recommendations from our shop attorney Paige Hulse on how to …
tweak your client contract for pregnancy & maternity leave
Ensure you Have an incapacitation provision in your contract
While we’re not personally fond of calling pregnancy “incapacitation”, any time you’re incapable of performing your work as a service provider, that is the legal term it would fall under.
An Incapacitation Provision is a section in your client contract that describes what happens in the event you are incapacitated and therefore unable to provide your services. (This provision would also apply if you got into an accident or sustained an injury that prohibited you from providing your services.)
First, take a look at your current client contract to see if an Incapacitation Provision is included. If you purchased an agreement from us, then this will already be included in your contract.
If you don’t have an Incapacitation Provision or want to double-check that yours is sufficiently thorough, feel free to download a complimentary copy of our Incapacitation Provision by clicking the image below.
In the way that our shop attorney Paige Hulse has written the Incapacitation Provision, the following would happen if you’re a wedding photographer and would be due around the date of the wedding.
You would have the right and ability to choose a photographer with a similar aesthetic to sub in.
What if the client refuses the other service provider?
This may well happen and it’s within the client’s rights to do so. In our Incapacitation Provision, clients are able to deny the other service provider you suggest.
What happens then?
If you’ve claimed you’re incapacitated and may not provide the services initially agreed upon, then suggested an alternative service provider, per the terms in your Incapacitation Provision, and the client denies the suggested service provider, the focus turns to your contracts Cancellation Provision.
We suggest that wedding professionals have their cancellation provision define what refund a client is entitled to, X number of months from the event date, and basically have ‘refund milestones’ built into the cancellation provision.
We wrote an entire post just on client cancellations and how we suggest you structure your cancellation and refund milestones.
If the client denies the suggested service provider while you’re pregnant and incapacitated, it’s important to ensure your Cancellation Provision is well written. Be sure to read the post linked below for all of our client cancellation recommendations.
Suggested reading: How to legally protect your business financially from cancellations
At what point in the pregnancy are you considered incapacitated?
With pregnancy, you could be 3 months pregnant and fully capable of performing your services or 3 months pregnant and put on bed rest and therefore incapacitated and not able to perform your services.
So there’s no set amount of time into a pregnancy that someone is determined incapacitated.
It is up to you, the pregnant person and business owner when you consider yourself to be incapacitated. We’ve kept the incapacitation provision purposefully a little vague so incapacitation may be claimed at the point that you need it.
Prepare your business for an unknown amount of time off
Our shop attorney has had her fair share of time off work for multiple back surgeries, all of which require an unknown amount of recovery time.
The prep she does in this business and her law firm to take time off for those surgeries is similar to what would be required to prep for birth and maternity leave. So we’ll share with you what she does, and encourage you to take the same steps!
Step 1. Have a business friend you may refer out to
Before our shop attorney Paige Hulse takes time off, she lines up co-council for all of her legal cases and gives that person access to all relevant files so they may take over the cases while Paige is away.
For you, this could mean chatting with a business friend such as a fellow photographer, DJ, or wedding planner, and agreeing that they will take over your projects or services while you’re away.
Step 2. Have someone manage correspondence while you’re away
Also important is for your business to be able to at least tread water while you’re away and ensure that potential clients and current clients’ questions may be answered.
It’s important to bring someone on to your team to manage your inbox and the inquiries that come through. Have a discussion with that person about who you’re referring clients to while you’re away (see Step 1) and how to handle future client inquiries.
What if I offer long-term services to clients?
While often discussions around pregnancy come up in the wedding industry which is an event-based, one-time service, it’s important for other service providers to also properly prepare for time off when pregnant.
We’ll use the example of a Virtual Assistant here who tends to offer services to clients month after month.
Important: Use a Termination Agreement to cancel your current client contract
In COVID especially many creative business owners learned a hard lesson. Judges often want more than simply an email stating that a service has been canceled. In order for services to be considered canceled in court, judges were looking for specific, signed cancellation/termination agreements.
Then once you’ve taken your time off and come back to work with those same clients, enter into new client agreements with them.
So here’s what the steps would look like in full.
Step 1. Send the client an email with the date you’re planning on leaving.
Step 2. Sign a cancellation agreement with the client.
Step 3. When you’re back, enter into a new client contract with them.
At the end of the day, as we’ve learned from COVID, it’s always a good idea to have your business prepared for the unexpected and the possibility of being incapacitated. So while going through these steps to prepare for your new baby is beneficial for your maternity leave, it’s also just good business practice too.
Congratulations on the pregnancy and we wish you all the very best with your new baby.
Contracts mentioned in this post:
