Flu and Pregnancy

jmcaa

Employee has been sick very much lately with morning sickness and sick in the afternoon/evening due to pregnancy. Her manager switched her hours from mornings to nights (without telling or asking her). Said he needed someone "dependable" to work mornings.

She called in sick Saturday. That evening she went to the emergency room. Diagnosed her with some type of gastrointestinal problems, along with the flu, and pregnancy. She had to receive an IV, along with nausea medicine. Doctor in emergency room gave her a prescription and told her not to return to work until Tuesday.

The supervisor said he was taking her completely OFF the work schedule until Saturday even though she repeatedly told him the doctor said she could return Tuesday.

1. I told her she needs to file for FMLA for the time off. Wouldn't this situation qualify?

2. Can her supervisor just take her off the schedule? Switch her hours, etc.?

Just want to get a couple of takes on this situation from others familiar with FMLA.

Thank you!

LivindonSouth

Depends entirely on the culture there and who has what level of authority. Sounds like to me that she can file for part/total UI benefits and maybe get her waiting period week behind her for this benefit year, anyway.

Otherwise, sounds like you have an irritated and trigger-happy supervisor, probably a short guy with a Napoleon complex x:-). He may be due for a refresher course in FMLA retaliation. I see that coming next.

jmcaa

Yes, I am amazed at the lack of professionalism in her organization. District Manager yells at employees in front of customers, Store Manager has NO idea how to treat employees and therefore, Assistant Managers treat employees just like other two do!

awilliams

I'm currently 8 months pregnant with my third child, and just got over a terrible flu, so I may be uniquely qualified to answer this question! Let's take it step by step:

1) Morning sickness. Morning sickness itself is covered by the FMLA and the employee must be allowed to take FMLA time for her absences caused by morning sickness, regardless of what time of day they occur. She should have been placed on FMLA status at that time, and any absences related to morning sickness recorded as FMLA time. These absences can, and probably will, be taken on an intermittent basis. Changing her schedule may or may not be seen as retaliation to the use of FMLA time, or to the existenece of an FMLA condition. Of course, the employer retains the right to schedule do to business needs, but I would encourage the supervisor to tread lightly in this situation.

2) Flu. The flu by itself, when it is as severe as the case this poor woman had, can be an FLMA event. Any negative response - such as refusing to put her back on the schedule when cleared by her doctor, is a violation of the FMLA. She should immeditaely be put back on the schedule to work when she is cleared to return.

3) Pregnancy Discrimination Act. Never forget that pregnant women are a protected class and any discrimination, harassment, or adverse behavior towards them due to their pregnancy is a violation of Title VII. Simply stated, pregnant women need to be treated the same as everyone else, including other people with health conditions. If someone who was not pregnant came down with the flu and was not taken off the schedule for a full week like this woman was, she could claim pregnancy discrimination. Supervisors must do thier best to treat similarly situated employees the same.

4) Renegade supervisor. The big issue here seems to be your supervisor's misunderstanding of FMLA and/or refusal to abide by it. He could probably benefit from some education and training. We have lots of great materials available for this siutation, and as a subscriber many are available free to you. First, download a free copy of our latest FMLA report (under FMLA in the Special Report list) and look thorugh the latest Hot Topics - Family Medical Leave for articles to guide you through.

Good luck!

Anne Williams
Senior Attorney Editor
M. Lee Smith Publishers




Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

jmcaa

Thank you so much for your reply. She just had to go to the doctor again (yesterday) because she was not getting better. I'm sure her supervisor will treat her badly when she does return to work.

awilliams

It's probably time to start disciplinary action agains the supervisor for violating company policies. That way, if the employee sues, you will have some defense because you responded appropriately to the supervisor's actions.

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC