Invitro Preganancy Probs Keeping Her Out

jfletcher · June 2004

I am new to the company and have had this gem dropped in my lap. Employee left for leave on 4/04 to return 5/31/04. First DR's note dated 6/01/04 says EE will be back to work 06/04/04....nope, next one dated 6/3/04 DR. says EE out until 6/7/04 then return....nope, on 6/7/04 EE sends in latest Dr. note saying now out till 6/16/04. In the mean time EE calls and tells me current DR is transferring her to an OB/GYN for re-evaluation of situation and EE does not know if the new DR will keep her out. She is Admin to the Pres and he is getting a bit frosty...and way behind with her duties to his office. She filled out company LOA but request was initially for only a month and no new extension ppwk was submitted. Any words of wisdom.

Thanks,

JWF

Don D · June 2004

Is your emphasis on administering FMLA or company leave policy? If FMLA, I see nothing outside what the Act allows for her. If company policy, it depends on what it allows and what the practice has been. In either event, it is always very unwise to conclude that a pregnant employee should be terminated, frosted executive or not.

jfletcher · June 2004

Basically I am trying to support my position to the President that she has protective rights under the FMLA and Pregnancy Discrimination Act. Granted her return has been delayed many times, not her fault. Pres wants to term/or permanantly remove her from postion and I keep giving him the story about the rights she has available to her. Where do I need to direct him on removing/replacing her on a permanent basis? He has tried the marginal preformer in the past routine but never documented anything so I said that was a moot point. There is not an available light duty spot, even if she could come back. I am perplexed on which way to direct him.

THX

Don D · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-09-04 AT 03:20PM (CST)[/font][br][br]He can do whatever he wants to in her absence, however:

29CFR825.214 "On return from FMLA, an employee is entitled to be returned to the same position the employee held when leave commenced, or an equivalent position with equiv benefits, pay, and other terms and conditions of employment. An employee is entitled to such even if the employee has been replaced or her position has been restructured to accommodate the employee's absence." I doubt you have an equivalent job to the one she holds.

(edit) 29CFR825.215 "An equivalent position is one that is virtually identical to the former position in terms of pay, benefits, working conditions, privileges, perquisites (perks) and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority."

marc · June 2004

You need to study the FMLA a bit to make sure you do not get sideways with applying it to your company. As Don D pointed out, nothing she has done so far violates the provisions of the act. If you term her or do not allow her to return to her old job or it's equivalent, your company will be guilty of interfering with her FML rights and that could lead you to some very hot water. Take that to mean that you will be writing some big checks to lawyers and perhaps to this EE.

Putting her in a light duty position does not work for PDA purposes or FML purposes. Hire a temp to do the work while she is out. Make sure the temp knows the job goes away when the EE returns to work.

Cheryl S SPHR · June 2004

By all means, take a close look at the FMLA. Although this situation may qualify, the employee herself also has to qualify by being employed for a minimum amount of time and hours.

Don't assume she is FMLA protected without going through the steps to make a determination.

Sticky situation -- good luck.

Invitro Preganancy Probs Keeping Her Out

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