Pregnant MA-based employee issues

We have an employee who is pregnant and has already exhausted her FMLA leave.  She is still eligible for MA leave once she gives birth.  Her doctor may put her out on disability a month before her due date.  What are our obligations to her?  She has been having a great deal of performance issues before she became pregnant, and this has complicated things a great deal.  We would like to know if we can take any action and if we can how.  Any advice?


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  • How far away is she from her due date?  Sounds like at least one month since her dr hasn't already put her out?  Depending on the timeframe it might be more reasonable than it sounds to terminate her.  I don't know the MA leave laws, but it sounds like from what you stated that she isn't truly eligible for MA leave until the day she gives birth, so you don't overly have to take that into account now. Does the MA leave law allow for medical/disability leave prior to the baby being born? Right now, you might just have to consider FMLA. If so, you have every right to terminate if she is unable to return to work.

    How have you dealt with other employees who have run out of FMLA protected time?  Have you given them an extension? If so, you would need to treat the her as you did any other medical condition so as to not be discriminating based on her pregnancy alone.

    I think a judge/jury will take into account the amount of time between these events:

    (1) last day available for FMLA

    (2) # days employee is out unprotected before the baby is born

    (3) # days before the MA leave law comes into effect for her

    I would consult a local attorney who is familiar with both FMLA laws and MA leave laws.

  • If we're talking about the Massachussetts Maternity Leave Act (MMLA), then the eligibility standards are quite clear.

    1) Three months tenure as a full time employee OR having worked beyond any documented probationary period
    2) Absence for the purpose of giving birth
    3) Provided at least 2 weeks notice of her anticipated date of departure and intention to return to work.

    However, what she's eligible FOR is 8 weeks of unpaid, job protected leave that may not begin "substantially" before birth, meaning it doesn't seem to cover complications of pregnancy so much as the birthing process and subsequent immediate care needs of the child and recovery for the mother.

    Read here for more info: -- there are sections that discuss pregnancy related disabilities and the interaction between MMLA and FMLA (although FMLA appears to be exhausted).

    I agree 100% with HRforME that you need to stick to what you have done in past situations with people who have exhausted FMLA leave.  I am really interested in knowing how much time there is between the end of her FMLA and the beginning of her anticipated disability period.  That information will be critical in evaluating the risks associated with the termination.  If it looks like you are just trying to strike while the iron's hot in a brief window of opportunity, it will look more and more like retaliation for FMLA use or for intended MMLA use.

    A lot depends on the specifics that we probably cannot be expected to know about on this forum like who wants her gone, why, when that person made the decision to try to jettison her (and if anybody else knew about it) and, of course, how strong the performance related termination case might have been in the absence of medical issues,

  • I agree with the other posters.  The only thing I want to add is about your comment of "having a great deal of performance issues".  You need to evaluate this case strictly based on your policies and FMLA or MA.  If you mention the performance issues as a contributing factor in your decision to terminate, it will look like your using this as an excuse to get rid of a poor performing employee. 
  • She exhausted her FMLA leave in October and is due at the end of March.   MA leave comes into effect the day she gives birth.  She has had excessive absences and her work has been suffering for quite some time.  She was to be terminated, and then abruptly went out on FMLA leave last August.  If she goes out on short term disability, what are our options? 


  • What Pam is saying is very, very, important.  Cause of termination should always be very, very clear.

    Here are your challenges.

    You state that absence is a problem and, it seems you are indicating that the absence is what is causing the work to suffer.

    Because the root of the problem appears to be absence and at least some of the absences have been job protected, you need to be able to show that it is only the non-job protected absences that are causing problems.

    Because at least some of the absences, and perhaps even all of them have been related to pregnancy complications, you have to show that you would have handled this situation exactly the same had the medical condition been something other than pregnancy complications.

    Because the termination did not happen before FMLA, there is a great deal of concern that termination now may permit a prima facie ruling in favor of plaintiff on a retaliation claim for having used FMLA rights or for having already stated the intention to use MMLA leave in the near future.  To top it all off, this person is likely to go out on disability which may invoke ADA depending on the nature of the disability.

    In short, a termination decision at this time has to be able to demonstrate:

    1. Neutrality with respect to the medical condition itself;
    2. None of the work performance problems are related to, for example, tasks undone due to job protected leave;
    3. The termination is not for having used job protected leave under FMLA;
    4. The termination is not to prevent the use of MMLA leave, and
    5. The termination is not because of a known or perceived disability.

    I think it's going to be difficult to do all that and have effectively no real risk.  I would guess that there is actually substantial risk in Massachussetts for a termination of this profile.

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