With 15 employees, FMLA is not normally covered. Is there something specific I need to understand?
Your company is covered under ADA and the Pregnancy Discrimination Act and should be accommodated to the maximum reasonable limits.
Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.
An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees. See http://www.dol.gov/whd/regs/compliance/whdfs28.htm.
So, your answer is probably no. Adverse attendance actions due to pregnancy related issues are not going to be legal in most cases.
MEMBER RESPONSE:
I thought FMLA started at 15 employees. I think I was mixing it up with the ADA. If this is the case and we only offer 2 months of maternity leave can she use disability for a limited period of time if she needs to go on bed rest prior to her giving birth? How does all of that work if we currently pay 70% of her insurance and she pays the rest?
FMLA is 50. Sounds a lot like 15. lol
As for her disability, she can definitely use that as soon as it is indicated. So, you will want to check into the rules on the policy.
You will want to make arrangements with her for the 30% premium while she is out. Be sure she knows that her plan will terminate if her payment lapses. She will be able to enroll in COBRA but, that will be an even higher premium so it is in her best interest to stick to the payment arrangements. https://insurance.az.gov/arizona-sample-notice-continuation-coverage-mini-cobra
Her random days off should be well documented. If she gets the hint that she can blame it on the pregnancy, that will possibly be her excuse for all issues. So, you may be in a no-win situation. Basically, she must be treated as any other person with a disability. So, always keep that in mind.
Tags: FMLA Pregnancy Disability Act