FMLA and Pregnancy

slewis

I need some advice. I have an hourly non exempt worker that has an attendance issue, she is currently on the last phase of our disciplinary policy, she was suspended for a day w/o pay and decided to return with the understanding that her absentee problem would be resolved. She then comes in a week later to tell us she is pregnant. Then to top it off she calls out. At this point in the attendance policy she would be let go with or without a Dr's note. However, because of the FMLA I am afraid to do so. Doesn't the 12 weeks apply to her as long as she is pregnant and the doctor says she is out for the pregnancy? and What else do I have to think about here. If she doesn't have a note and we terminate her then she comes back with a note, because we all know dr's love to write notes, what then? Please help I need to let this person go because by not letting her go I will have other people thinking they can "get over on the system".
Thank you.

awilliams

The state of being pregnant does not automatically qualify a woman for FMLA leave. She must have a serious health condition, either related or unrelated to the pregnancy, to qualify for FMLA leave for herself. Morning sickness, and other pregnancy-related conditions may apply, but she needs to have a doctor's note at the outset stating why she needs FMLA leave (if it is for morning sickness, the FMLA regs allow her to call-in sick without requiring a doctor's note each time).

The state of being pregnant also does not allow her to violate your absence policy. If you have followed your policy and documented her absences, then the next absence that violates your policy (FMLA-approved absences excluded, of course) should equal termination. If you have treated her, and other employees fairly, you should be fine. Remember, litigious employees like to sue, so even though you do everything right, you still may end up with an EEOC complaint or a lawsuit. Before you make any moves, it is best to check with your counsel.

Good luck!

Anne Hunter Williams
M. Lee Smith Publishers, LLC

Down_the_Middle

slewis:
Unless you've failed to mention some critical facts, I don't see anything that covers FMLA in this example. Unless the woman has a serious health condition, she's not likely covered by FMLA. The mere fact of pregnancy does not offer her the protection you're considering. This issue, it seems to me, is an attendance problem and you'll probably be better served to address her attendance exactly like you handle other staff who fail to report as scheduled. If she's at the discharge step, then that's what it is............
[all of this assumes there's no health prob's associated with her recent dx of pregnancy] Good luck.

slewis

[font size="1" color="#FF0000"]LAST EDITED ON 03-13-02 AT 10:32AM (CST)[/font][p]This employee is claiming that her prenatal vitamins taken with her antibiotic because of a UTI is what the doctor said is making her sick and not to take them together. Do you think this applies under FMLA?
Thanks

slewis

Another question that has come up is whether or not her monthly doctor visits are to be counted against her 12 weeks?

Margaret Morford

Prenatal visits do qualify for intermittent FMLA.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

slewis

Thank you, one more question. What if the previous HR person did not start counting leave until the person actually was pulled out of work. None of the other employees ever had an attendance problem like this one did and this is the first one I have had go out on maternity leave since I have been here. Does this cause a consistency problem?

awilliams

I don't think so. If this is your first pregnancy-related leave, this may be the first time you've need to count intermittent leave. Plus, just because the person before you did things incorrectly does not mean you need to continue to err just for the sake of consistentcy. Apply the law and regulations as written and you'll do fine. It is when you start to veer off the well-charted course that you experience problems.

As for the pre-natal vitamins plus antibiotics argument, if her physician excuses her I would accept that excuse and move on. Pre-natal vitamins themselves are pretty nasty things and could cause anyone to be too nauseous to come to work, if you ask me! People who have chronic attendance problems unrelated to illnesses will continue to have the problems when the illness goes away, so I get the feeling you'll get a chance to nail her about her attendance issues at some point down the line. For right now, comply with FMLA and keep documenting non-FMLA related performance issues.

I hope I was able to give you some help.

slewis

Thank you and you are correct that I don't think I will have any problem with dismissing her for attendance once she comes back, bad habits don't just stop.