Human Resource Blog

Arizona FMLA

I posted this question the other day and my friend works in Arizona:

I have a friend that is currently pregnant. She has worked for this company for at least seven years. They are telling her that she must use FMLA for her doctor visits. She planned to ask for 12 weeks of FMLA when she has her baby. Now they are telling her she will not be eligible for the 12 weeks because she is using some of that time for her visits.

Now I want to know if it is legal for them to make her use her FMLA for her doctor appointments because she wants to use her sick time.

There’s good news and bad news here.

Your friend may be entitled to use her sick time for the doctor’s office visits, depending upon company policy. So she could be paid for that time. However, even if she is paid, it can still be deducted from her 12 total weeks of unpaid FMLA leave. This is true as long as the employer notifies her ahead of time in writing that such paid leave will be counted as FMLA leave.

It appears that the employer has already provided the worker with the required notification, which is why this question is arising. 

This is largely a matter of company policy. According to the U.S. Department of Labor, Wage and Hour Division, which enforces FMLA, “The substitution of accrued sick or family leave is limited by the employer’s policies governing the use of such leave.”

Many, many employers permit workers to use all of their vacation, sick and person time, and then take an additional 12 weeks of unpaid leave under FMLA. However, there is no federal law that requires them to do so.

This employer has chosen the less generous option, of allowing the employee a total of 12 weeks of time off, period. This is perfectly legal, unless the employer has treated other workers with a serious health condition in a different way in the past.

If the employer has treated other workers with a serious health condition differently, then the Pregnancy Discrimination Act requires that the employer do the same for pregnant workers. Suppose Bob had a heart attack. He was allowed to take 2 weeks of sick time, plus 12 weeks of unpaid FMLA. In that case, under PDA, the employer must treat Bob the same. However, if the employer counted Bob’s 2 weeks of sick time as part of his 12 total weeks of FMLA, then they can legitimately do the same for a pregnant employee.

To look at another example, suppose that Mary has cancer. The employer has permitted Mary to use her sick time for intermittent doctor’s appointments prior to taking FMLA leave. Under these circumstances, the employer must treat a pregnant employee the same way. However, if the employer required Mary to use FMLA leave for her intermittent doctor’s appointments, then it can legitimately do the same with a pregnant employee.

By definition, any period of incapacity due to pregnancy or for prenatal care qualifies as a “serious health condition” for FMLA purposes.

One way to think of FMLA is as a two-edge sword. On one hand, it guarantees employees up to 12 weeks of unpaid leave for a serious health condition, or to bond with a newborn child. On the other hand, it caps the total amount of leave that an employer must grant in those situations at 12 weeks. That’s not 12 weeks, plus any sick or vacation time, but 12 weeks total.