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Aug02

FMLA Leave

What is the law on an employee who is still on their 90 day probationary period and develops complications with pregnancy? She brings a Doctor’s note stating that she is being put on bed rest. There were no contacts or updates from her. Then, she notified me a month later that she had a premature baby by text message. No further contact or information was given. Then she sent a text message asking if she needs to look for a new job and also demanding to be allowed to bring the baby back to work with her due to day cares all having waiting lists. This person was still on probation so I am not sure if FMLA or any similar laws in Arkansas apply. Can you help me find the answer?

The federal Family and Medical Leave Act (FMLA) requires certain employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. So, an employee who has worked less than 90 days is not covered under the FMLA.

The federal Pregnancy Discrimination Act (PDA) must also be considered. The PDA prohibits sex discrimination on the basis of pregnancy. Employers with at least 15 employees are covered under the PDA. All pregnant employees of covered employers are covered under the PDA regardless of their length of service with the company.

Under the PDA, if an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her in the same manner as any other temporarily disabled employee; for example, by providing a leave of absence. Further, employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave. So, consider what entitlements have been provided to other temporarily disabled employees in the past and make sure the employee in question has been offered the same.

It’s also important to consider what was promised to the employee at the time she was placed on bed rest. Was she given a set amount of time off? Was there any promise, even an implied one that she could return to work at any time? Even if the employee is not covered under the FMLA or PDA it’s still best practice to adhere to your own guarantee of employment.

Let’s assume the employee was told she could have the time off to manage her pregnancy complications with the expectation she would return to work soon after childbirth. Even so, this doesn’t allow the employee to bring her child to work with her or extend her return to work date due to childcare issues.

It’s advisable to set a definitive return to work date. Clearly explain to the employee that children are not permitted at work (assuming such is true) and if she doesn’t return to work on the set date her employment will be terminated. Make sure to document any communication with the employee.

It’s best to adopt a leave policy that addresses situations like this one. The policy should include the eligibility criteria for a personal non-FMLA leave, maximum amount of leave time allowed, whether such time is paid or unpaid, the application process, and the right of the employer to approve/deny leave requests based on business needs.

HTH!

This entry was posted on Tuesday, August 2nd, 2016 at 7:32 pm and is filed under
Attendance Management, Benefits, Labor Laws.
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