Pregnancy and FMLA

justgettingstarted

I have an employee who has recently discovered that she is pregnant. Since, she announced her pregnancy on February 12th she has been absent 5 days and left early 4 times. Each time she calls in it's been because of "morning sickness".

Her attendance is a moral breaker. There many comments about her using the pregnancy as an excuss to be off of work.

This is the first pregnancy we have had. Should all of this missed time count agaist her 12 weeks?










SKOLER, ABBOTT & PRESSER, P.C.
Editors of the Massachusetts Employment Law Letter
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NeedCoffee

Technically, if she and your company qualify to be held accountable under FMLA, her "morning sickness" attendance issues are covered by FMLA. However, you may want to start addressing FMLA with her, especially if she's taking time off after the birth. If you remind her that these absences (intermittent FML) count against her 12 week total, she's diminishing her time off after the birth by a day every single time. That realization may help curtail that behavior.

Good luck!

System

I would tread a bit lightly before insinuating that she's goldbricking. She may be. But, speaking as someone who felt fairly horrible her entire pregnancy, don't rule out that she could actually feel sick. My poor sister had horrible 'morning sickness' in her second pregnancy, through about five months, to the point she was throwing up several times a day and couldn't eat. Each woman and each pregnancy is different.

Of course, you may have very good grounds to suspect goldbricking. Need Coffee's advice to discuss her FMLA leave with her now is good. Maybe add a tone of "I don't want you to find out too late to make plans to cover this situation, so I'm talking to you now." That way, if she's exaggerating, she understands the consequences, and if she's not, she'll appreciate you looking out for her. It is nearly impossible to find adequate day care a mere month before you need it.

My $.02.
Jennifer Alvey
Group Publisher, In-house Counsel and Workers' Comp

marc

Good advice so far. I would add that it is a good idea to have her medical provider fill out the DOL paperwork certifying (or not) that this leave is FML.

I have seen Dr's certify it and other Dr.s have not. I count every bit of this toward FML that I reasonably can count. As NeedCoffee said, it is good to visit with them about how the FML will work and the implications about how much can be left when the child is actually born. We require the use of vacation and sick leave concurrent with FML, and I think it wise to help them understand how much of their leave time might be "paid" through the use of these leave banks.

That is always an eye opener for them and makes them very aware that using the time off before delivery will impact how much of the time is left and how much is paid.

This is also an opportunity to discuss health insurance and how much time they have to determine if they want to add the child to their Health Insurance, which is 30 days for us.

We also have optional Short Term Disability, which will bring some disability pay after the delivery and after vacation leave expires.

Just some thoughts.

HR In NH

I see that you are in Ohio, so this probably will not apply to you.

However, we have employees in CA, which has the Pregnancy Disability Act, which allows up to four months of unpaid leave for pregnancy complications prior to birth, including morning sickness, and recovery after birth (generally 6 weeks). This law does not require that the employee meet any eligibility requirements.

Then, they have the CA Family Rights Act, which allows up to 12 weeks of unpaid leave to care for the newborn child.

These laws combined allow a total of 28 weeks of possible leave for a pregnant employee. FMLA can and should be tracked concurrently with either of these leaves.

It's unlikely you have this scenario, but it's good to research and stay on top of any changes in pregnancy or family leave acts in your state.

Incidentally, I would talk to these coworkers about their complaints about this pregnant employee. I think they need to keep their comments to themselves, give her the benefit of the doubt, trust you to manage it properly, and not create an uncomfortable work environment for this employee, or you could be looking at another problem.