Pregnancy: FMLA and ADA Applications

I know that Pregnancy is considered a "serious health condition" under FMLA; however, is it also considered a "physical...disability" under the EEOC's ADA regs?

One of our employees is requesting FMLA leave related to that employee's 23-year old daughter's pregnancy -- the daughter lives independently on her own and not with the parent.


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  • Is there something wrong with the daughter or is it just that the employee wants to be there when the grandchild is born? Due to the age of the child and the fact that the child is able to care for herself, it would not fall under either ADA or FMLA. If it is important enough the the employee to be there, she can always use vacation or some other paid time (assuming she has any).
  • The pregnancy doesn't enter the realm of disability unless there is a much more complicated issue as a result which would limit one or know the drill. I would not consider it FMLA for the employee either, unless the daughter's condition is such that the mother is needed to care for her transportation or meet her basic needs. The FMLA caps the age for most dependent infirmities unless the parent is required for the caretaking or care for basic needs of the child. There may be state laws though.
  • You need more details -- specifically, is this a normal pregnancy or does the daughter have some complications that rise to the level of a disability? Here is a recent article from the NH editors on the subject. As noted, it is not an easy question to answer:

    Can secretary get FMLA leave to care for pregnant daughter?

    The First Circuit (which covers New Hampshire) recently determined that a lower court had improperly dismissed the claim of an employee who was denied a requested, unpaid Family and Medical Leave Act (FMLA) leave to care for her adult daughter with medical complications related to her pregnancy.


    Gladys Navarro worked as a secretary for Pfizer Corporation. During the course of her employment, she requested an unpaid leave of absence under the FMLA. Her plan was to travel to Germany to assist her adult daughter and her two grandchildren.

    When Navarro requested the leave, she provided Pfizer with a note from her daughter's attending physician. In the note, the physician reported that her daughter was in the 36th week of her pregnancy and, because of high blood pressure, required bed rest to carry the baby to full term.

    Pfizer denied Navarro's request for leave. She departed for Germany anyway. The company sent her a letter directing her to immediately return to work. When she did not, she was fired. She then filed a claim against the company, asserting that it had unlawfully denied her FMLA leave and unlawfully fired her for attempting to exercise her rights under the FMLA.

    The law

    Under the FMLA, an eligible employee may take unpaid leave to care for a spouse, parent, or child who suffers from a serious health condition. The Act differentiates between children under 18 years of age and those 18 and older. If the child is under 18, then the parent needs to show only that he has a serious health condition. If the child is 18 or older, the parent must also show that the child is incapable of self-care because of a mental or physical disability.

    Thus, because Navarro's daughter was older than 18, the mom had to show that her daughter (1) had a serious health condition, (2) was incapable of self-care, and (3) was incapacitated because of a mental or physical disability.

    A "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider." This definition can include problems related to pregnancy. Given the physician's note, the appeals court found that Navarro had presented evidence that her daughter had a serious health condition.

    The court also concluded that Navarro had offered evidence that her daughter was unable to care for herself: "[H]er physician confined her to bed for the remainder of her pregnancy. At a bare minimum, such a prescription would appear to signal the patient's need for active assistance or supervision in the performance of everyday activities such as cooking, cleaning, shopping, and doing housework."

    The court then addressed the most significant issue -- whether complications from the pregnancy could be considered a "disability" under the FMLA. The law's regulations adopted by the secretary of labor incorporate regulations adopted by the Equal Employment Opportunity Commission (EEOC) under the ADA. Under the ADA, a disability is an impairment that substantially limits one or more major life activities of an individual.

    The court concluded that Navarro's daughter had an impairment -- high blood pressure. According to the court, the source of the impairment was irrelevant. Even if its source was relevant, the court concluded that while pregnancy itself may not be an impairment, complications resulting from the pregnancy can constitute an impairment.

    In reaching that conclusion, the court specifically rejected a 1995 New Hampshire decision that had found that pregnancy- related conditions aren't impairments under the ADA. The court also concluded that Navarro presented evidence that her daughter's impairment affected major life activities, including working and caring for herself.

    The next question was whether the specified impairment substantially limited the identified major life activities. Pfizer had argued, and the trial court agreed, that an impairment lasting no more than a matter of weeks cannot substantially limit a major life activity.

    The appeals court rejected Pfizer's argument as well as the trial court's reliance on EEOC interpretive guidelines in making its decision on the issue. The appeals court instead concluded that it wasn't bound by the EEOC's interpretive guidelines and that while duration of the impairment was a factor to be considered, an impairment of "modest duration" could be regarded, in some cases, as substantially limiting for FMLA purposes. In reaching that conclusion, the court of appeals emphasized the differences between the ADA and the FMLA.

    In light of this different standard, the appeals court sent the case back to the trial court for reconsideration. Gladys Navarro, a/k/a Gladys Navarro Pomares, et al., v. Pfizer Corporation, U.S. Court of Appeals for the First Circuit, No. 00-1856, 8/20/01.

    Bottom line

    Simply stated, an employee who seeks FMLA leave to care for an adult child with complications related to her pregnancy may be entitled to the leave. We will keep an eye out for future decisions in this area.
    Copyright 2002 M. Lee Smith Publishers LLC
    NEW HAMPSHIRE EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney.

  • Thank you, Theresa!
    Your response is right on point for the clarification I need!!
    ...and thanks to all who responded; this Forum is a great resource!!!
  • It is my understanding that the birth of a child falls under "serious medical condition", complications or not - thus allowing the mother and/or father the 12 week window for FMLA. Can you please clarify this for me as I have a situation here where we have an exempt person whos wife is pregnant. He gets the time but, since it is classified as a "serious medical condition" one of the owners of our company feels he should get some sort of comp for taking care of his wife. Please claify for me. Many thanks.
  • [font size="1" color="#FF0000"]LAST EDITED ON 05-20-03 AT 07:53AM (CST)[/font][p]FMLA does extend to an employee who is the spouse of the pregnant person, but under absolutely normal pregnancy situations, does not extend to the parents of adult children who are living independently and are or have been pregnant. Thus if you have an employee wanting FMLA for the birth event of a grandchild, this would not under normal circumstances qualify, unless your company policy is broader than the FMLA. All illnesses meeting the FMLA criteria are considered 'serious health conditions', since that is the bar that must be reached.

    I don't understand his logic about comping the ee since he cared for his wife who had a serious health condition. Not to minimize the event of pregnancy, but, an ingrown toenail surgery sidelining one for three and a half days is also considered a serious health condition under FMLA definitions. If your guy is suggesting you comp or not comp employees based on some slippery definition in the company of who went to what extent to put themselves out and care for another, get ready for a downhill ride!
  • >FMLA..., under absolutely normal pregnancy situations, does not
    >extend to the parents of adult children WHO ARE LIVING INDEPENDENTLY AND ARE OR HAVE BEEN PREGNANT.

    Are you saying that IF the pregnant daughter lives at home with her parent, the employee -- as a member of the immediate family within the same household -- the eligibility is different?

    (Add to that, there is no husband in the picture). ?
  • The act, in defining parent, says its a biological parent or one standing in loco parentis. It also says daughter means a biological, adopted, foster, ward or a child of a person standing in loco parentis WHO IS EIHER UNDER AGE 18 OR 18 OR OLDER AND INCAPABLE OF SELF CARE BECAUSE OF A MENTAL OR PHYSICAL DISABILITY. Incapable of self care is defined as needing assistance in three or more of the activities of daily living like bathing, eating, hygiene. It defines physical disability as an impairment that limits one or more of the major life activities as defined by the EEOC. It goes on to define in loco parentis as those with day to day responsibility for caring for and financially supporting a child.

    If I had the situation arise that you describe, I would grant the employee FMLA, but only if there is evidence that the mother is bedridden or the doctor suggests she needs help of a nature unusual to normal delivery and post delivery. But this would not include an employee whose daughter in Baton Rouge had triplets, taking the bus down to Cajun Country to spruce up the nursery and write thank you notes. Nor would it cover the ee who wants to 'be with her daughter' so she can rock the baby and the mom can get some sleep. Somewhere a line exists.
  • Does your policy allow for exempt employees to get paid for taking care of other family members with serious health conditions? For example, if his wife had cancer and he needed to take time off to take care of her would he get paid? If so, then he should get paid for this as well. Is the employee planning on taking off intermittently or in one lump sume period of time? The FMLA regulations allow for "docking" an exempt employee's pay for FMLA qualifying reasons but you can always go above and beyond what the regs state. If the owner feels strongly about this, and the employee is only planning on taking a day here and a day there, you can always decide NOT to dock his pay but keep in mind if you do for one, you have to do for all.
  • FMLA does not cover adult children unless they are diabled in some way. Pregnancy in and of itself is not a disability under the ADA. I would deny the request.
  • Thank you, all! Your discussion on this issue has been most helpful.
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