FMLA / ADA / Pregnancy - Wisconsin
kmaries
29 Posts
[font size="1" color="#FF0000"]LAST EDITED ON 04-14-04 AT 02:29PM (CST)[/font][br][br]I searched old posts, but could not find anything that directly related to my question. The situation is this:
An employee is eligible for 12 weeks of federal FMLA. She is due on July 26, 2004, but has been taken out on bedrest effective immediately until birth. She will therefore exhaust all federal FMLA time by July 6, 2004. In addition, Wisconsin has its own FMLA which allows 2 weeks for one's own serious health condition. Our company runs both FMLA and WFMLA concurrent where applicable so WFMLA has exhausted as well.
My question is what obligation do we have because she still has not delivered her baby as of July 6, 2004 to keep her as an employee? Assuming that our organization does not allow employees to take more than their 12 weeks.
My real confusion - Does pregnancy fall under ADA. Then my question is how long is she considered "disabled"? Would it be until the date of birth or 6/8 weeks following the birth?
To make the situation even more confusing, Wisconsin allows an employee 6 weeks for the birth of a child. After she delivers, would she not be eligible for the 6 weeks of WFMLA too?
Please help, I have a pretty good idea of what we need to do, but I want some opinions. Please share how you would work this situation or how you have in the past!
Thank you all!
An employee is eligible for 12 weeks of federal FMLA. She is due on July 26, 2004, but has been taken out on bedrest effective immediately until birth. She will therefore exhaust all federal FMLA time by July 6, 2004. In addition, Wisconsin has its own FMLA which allows 2 weeks for one's own serious health condition. Our company runs both FMLA and WFMLA concurrent where applicable so WFMLA has exhausted as well.
My question is what obligation do we have because she still has not delivered her baby as of July 6, 2004 to keep her as an employee? Assuming that our organization does not allow employees to take more than their 12 weeks.
My real confusion - Does pregnancy fall under ADA. Then my question is how long is she considered "disabled"? Would it be until the date of birth or 6/8 weeks following the birth?
To make the situation even more confusing, Wisconsin allows an employee 6 weeks for the birth of a child. After she delivers, would she not be eligible for the 6 weeks of WFMLA too?
Please help, I have a pretty good idea of what we need to do, but I want some opinions. Please share how you would work this situation or how you have in the past!
Thank you all!
Comments
She is pregnant, but suffering from a disability that will temporarily prevent her from engaging in many basic life functions. She cannot return to work before her doctor says it's OK...6-8 weeks is the average, if she has further complications, what can you do?
WIFMLA relating to the birth of a child states that employees are allowed "Family Leave". It does not specify "bonding". In addition, this leave can commence anywhere between 16 weeks before and 16 weeks after the birth of a child. For example, if an employee wants to take time off work to paint the nursery, as long as it's within that 16 week period it's okay.
That being said, even though the employee will exhaust all her federal FMLA leave, she still has that 6 weeks for the birth of a child to use and it appears, based on your information, that she will be out of her federal leave approx. 20 days before the birth is scheduled. So in answer to your question, yes you have to keep her as an employee.
Keep in mind, however, that once she starts using that 6 weeks allowable under WIFMLA once she's out, she's out.
If she has the child before she exhausts her federal leave, she would still have the six weeks available to her after the child is born.
Clear as mud, huh?!?
I thought that the two laws would give her at most 18 weeks off if she delivered on the date she exhausts federal. However, I wanted to make sure that I was looking at it correctly.
In all actuality, I doubt she will end up taking 18 weeks total. She has a large chance of going early. Once she has her baby I will run WFMLA and FMLA concurrent.
Thanks for responding, I need another head when dealing with Wisconsin & federal FMLA!
To be an ADA disability under ADA, the medical condition has to be either long term or permanent in addition to significantly impairing one or more major life activities.
Although "long term" isn't defined, most court cases where the issue has arsine under ADA have gone around the one year period, although some court cases have gone down to 10 months. EEOC's guidance on long tem doesn't state specifically anything but again takes a look at the nature of the impact.
I don't think that there is any existing court ruling on ADA that holds that merely being disabled due to pregnancy meets the criteria for disability under ADA.
But sometimes there may be an underlying long term or permanent medical condition that is aggravated by the pregnancy and that would then meet the criteria of a disability in that regard because the combined condition significantly impairs one or more major life conditions. It is possible in that case that such a situation could fall under ADA as a disability.
That's my understanding of the relationship between ADA and pregnancy disability.