10 weeks pregnant, FMLA, and unlimited sick days
Stacey H
5 Posts
I have a dilemma. I am HR for a municipality. One of our female police officers is 9 1/2 weeks pregnant. She came to her commander with a doctors note stating that she can't work the streets. She has been removed to an inside position (desk job) for the duration of her pregnancy. After one week of this, she has brought in a doctors note stating that she cannot work at all during her pregnancy. She is NOT high risk (some of these doctors will write notes for anything, I swear). Sick time policy (bound by union contract) is unlimited sick days, therefore, she's going to get sick pay for the next 6 1/2 months until she has the baby and then 6 - 12 weeks FMLA. The commander wants to send her to another doctor to verify that she is not high risk and can sit a sit a desk all day. Can someone please give me some guidance here? I know that pregnancy is considered a "serious illness" under FMLA and under ADA it is a "protected class." I am afraid that she can consider this some sort of harassment. I know that if the police chief didn't "give away the bank" as far as sick days when the last contract was negotiated, this would not be happening. I would greatly appreciate input from anyone! Thanks much!!
Comments
* You should be able to require a second opinion on her need to stay home. There's a procedure for this under FMLA, although this is really a contract issue in your case.
* If she's starting to be out at 9 1/2 weeks, you can start the FMLA clock running now. FMLA for an incapacitating health condition can run concurrently with your (unlimited) sick days. Advise her that being off now is going to burn through her FMLA days so she's not covered after the baby's born. I would guess that under your union contract, the unlimited sick days would not apply to the bonding days she's going to want after the baby's born.
Of course, she may not care - she may take the six months of paid leave, have the baby, have another 4-6 weeks of doctor-approved post-partum incapacity, then either come back to work or leave the job knowing she's soaked the city well.
By the way, pregnancy is not considered a "serious medical condition" automatically under FMLA. Any period of *incapacity* related to the pregnancy is covered. But you have the right to make sure she's actually incapacitated.
Brad Forrister
Director of Publishing
M. Lee Smith Publishers
I work public sector safety as well, in Califonia (just put that out there cause we are a little different don't ya know).
FMLA and PDL run concurrently, so she would have sixteen weeks of leave total there. Her notice should have included information to explain the details and requirements of both the employer and employee under these leaves. She is not entitled to PDL and then FMLA. If you are in California however, we have CFRA which would start once the baby is born, it's twelve weeks and has specific restrictions. Potentially, in a case where there is PDL one of our employees could be off work for seven months.
As far as sending her to another doctor, unless your MOU and/or policies provide for fitness for duty exams at the employers request (and even if they do), I'd be very cautious. This isn't a situation of verifying an industrial injury. Check your policies, I'm sure you can request a fit for duty exam upon her release from PDL.
Sick leave benefit is a negotiated item, even though your chief might feel this situation equates to a gift of public funds or waste of it, you should be the voice of reason here. Remember the employee is not supposed to experience any adverse affects while on protected leave.
Good luck