We have an employee who, due to pregnancy complications, is taking excessive numbers of sick days (at work 1 day, out for 2 weeks, e.g.). She is good employee who we would like to retain post pregnancy, but for the duration of her pregnancy would prefer she stayed home.

Can we tell an employee she may not return to work until after her delivery date?

Is she eligible for FMLA, and when is she due?

She is not eligible under FMLA. She is due in 11 weeks.

We have an employee who, due to pregnancy complications, is taking excessive numbers of sick days (at work 1 day, out for 2 weeks, e.g.). She is good employee who we would like to retain post pregnancy, but for the duration of her pregnancy would prefer she stayed home.

Can we tell an employee she may not return to work until after her delivery date?

----------------

Who says she isn't eligible for FMLA? Just you? Better check with the law. If she is sick from her pregnancy she certainly is entitled to FMLA and you'd be stepping into deep doo-doo by attempting to deny her the right to FMLA she has. If she gets a bad cold she can use FMLA. If you fire her over this and I was her I'd sue you and I'd win.

We have only 25 employees. We are not required to offer FMLA.

And I did not say we were contemplating firing the woman.

Okay, what is an "excessive" amount of days for someone pregnant?

The law needs to be changed to protect all employees, no matter how small the employer.

She's having a baby for the love of Pete! Cut her some slack. Sheesh!

Can she perform her job from home? That may solve your problem and hers.

Best,
revenire

Excessive = she reports to work approximately 1 day out of every 10-15 scheduled work days.

Excessive = she reports to work approximately 1 day out of every 10-15 scheduled work days.

Yeah, but is she sick? Is she having problems with the pregnancy? Due to HIPAA I doubt you will know that unless she tells you.

Can she work from home? I have no idea what she does for you but some employees are vital at "the office" and some can do the same thing they do at the office from their homes.

I see the spot you're in and I see her side of it too. Is this her first child? There might be complications you don't know about.

I'd run it by an attorney in your state. What is going to happen after she has the baby? She might be gone even more then. I mean she's not going to be back to work the same day she has the kid pops out. How long will her recovery be? How long will you give her? There has to be some sort of way to work this out where both of you are satisfied. If not, fire her and do what you need to do to keep things running. It sounds like things are running now without her. Is business suffering because of her pregnancy and the fact she isn't there often? Are you paying her when she's gone?

The trouble with web forums is not enough information can be shared sometimes to really give advice a person needs.

Have you ever had 50 employees?

revenire, can you offer her an upaid leave of absence and offer to reemploy her after she recovers from the birth? I understand how her not working but a couple of days/mo would have a tremendously negative effect on your business. I also understand how being fired during her pregnancy could have a tremendously negative effect on her. Is there no middle ground that ya'll can reach in a effort to achieve a win win situation for all concerned? As previously suggested is there any way she could do some if not all of her work from her home?

EBates is OP - revenire is a poster replying to thread.

That's what I am asking. Here is the original posted question:

We have an employee who, due to pregnancy complications, is taking excessive numbers of sick days (at work 1 day, out for 2 weeks, e.g.). She is good employee who we would like to retain post pregnancy, but for the duration of her pregnancy would prefer she stayed home.

Can we tell an employee she may not return to work until after her delivery date?

A warning.
This is just a forum. While many of the posters know their subject area, some posters do not and are not giving correct information.

EBates is OP - revenire is a poster replying to thread.

Thank you Betty, sorry EBates I intended to direct my comments to you. Have you ask the employee if this is doable for her? What are her feelings on the matter. If you simply lay her off or otherwise terminate her she may not want to return after she delivers. Can you not include her in this particular decision making that will effect her?

I believe if you talk to her she may go for the idea of being out the 11 weeks without pay,especially if you frame it as a leave of absence.
You can give over what FMLA calls for. If she is in a financially sound area,she may go for the idea of leave of absence. Before FMLA came along thats how most of the good employers handled it.
JoeC

revenire, you are again misstating the law. FMLA cannot be used for a bad cold and does not apply when there are only 25 employees in any case. FMLA is available only for a serious health condition. Read the statute.

Consider this a warning. If you continue to provide incorrect information you can lose your right to post here.

revenire, you are again misstating the law. FMLA cannot be used for a bad cold and does not apply when there are only 25 employees in any case. FMLA is available only for a serious health condition. Read the statute.

Consider this a warning. If you continue to provide incorrect information you can lose your right to post here.

A warning?

I have had doctors fill out FMLA paperwork that was approved for a cold. That isn't incorrect information it is fact. And, FMLA would apply if the employee was a teacher. You should read up on the law. You're deficient in your knowledge of it.

If this employer ever had 50 employees she qualifies for FMLA. That's my reading of the law.

cbg are you an attorney that practices labor law? If not I don't quite see how you have the final say on interpretation of law. You have an opinion. That's great. We all have those.

revenire, can you offer her an upaid leave of absence and offer to reemploy her after she recovers from the birth? I understand how her not working but a couple of days/mo would have a tremendously negative effect on your business. I also understand how being fired during her pregnancy could have a tremendously negative effect on her. Is there no middle ground that ya'll can reach in a effort to achieve a win win situation for all concerned? As previously suggested is there any way she could do some if not all of her work from her home?

Yes, I suggested she work from home if possible.

It seems to me this employer just wants to toss a pregnant woman out into the street.

http://www.dol.gov/elaws/esa/fmla/faq.asp

Q: Can my employer make inquiries about my leave during my absence?

Yes, but only to you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may have a health care provider representing the employer contact your health care provider, with your permission, to clarify information in the medical certification or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.

Q: Can my employer refuse to grant me FMLA leave?

If you are an "eligible" employee who has met FMLA’s notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied FMLA leave.

Q: Will I lose my job if I take FMLA leave?

Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ("key") employees.

Q: Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?

In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave.

Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration

Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.

Q: Can my employer fire me for complaining about a violation of FMLA?

No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.

If this employer ever had 50 employees she qualifies for FMLA. That's my reading of the law.

Your reading skills are deficient.

From the US Code http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.104.htm

(a) An employer covered by FMLA is any person engaged in commerce or
in any industry or activity affecting commerce, who employs 50 or more
employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year.

It seems to me this employer just wants to toss a pregnant woman out into the street.

That is not the case. OP has said he wanted to retain her as an employee. His problem is the same as any employer when your staff (one or more) fail to show up it slows production down and cost employer money. What OP wants is to not have her on his work scedule until after the child is born and Mom is ready to return to work. He is asking if there is any reason he cannot do so legally! He seems to care for this person but he also needs his work done.

Your reading skills are deficient.

From the US Code http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.104.htm

(a) An employer covered by FMLA is any person engaged in commerce or
in any industry or activity affecting commerce, who employs 50 or more
employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year.

You should read on, and read deeper. If an employer ever had 50 employees then they would be covered. If I am wrong I do apologize. Teachers are covered whether there is one or one thousand.

Take care.

That is not the case. OP has said he wanted to retain her as an employee. His problem is the same as any employer when your staff (one or more) fail to show up it slows production down and cost employer money. What OP wants is to not have her on his work scedule until after the child is born and Mom is ready to return to work. He is asking if there is any reason he cannot do so legally! He seems to care for this person but he also needs his work done.

Do you expect someone to go onto a public website and say "I have this pregnant woman I'd like to fire can I?" What often "seems" to be the case often isn't.

I am new here, give me some period of time to get the lay of the land and the lingo. What is an OP?

Do you expect someone to go onto a public website and say "I have this pregnant woman I'd like to fire can I?" What often "seems" to be the case often isn't.

I am new here, give me some period of time to get the lay of the land and the lingo. What is an OP?

I prefer to take someone on their word until evidence suggest otherwise. So for time being I believe that OP (orignal poster) does not wish to fire this woman only to lay her off until after child is born and she regains her health

I prefer to take someone on their word until evidence suggest otherwise. So for time being I believe that OP (orignal poster) does not wish to fire this woman only to lay her off until after child is born and she regains her health

Evidence? We're not in court. I get the impression there are a couple of wanna-be attorneys here. Are there any real labor attorneys on this board?

You just accept what someone posts? No, you don't -- you didn't accept what I posted.

"Consider this a warning. If you continue to provide incorrect information you can lose your right to post here."

LOL, what is that all about anyway? What is an OP? Original Poster? I said I was new here. Take it easy on me. I am not here to file a stress claim or anything. I just came for talking, not fighting a war. I am a nice guy, just ask my wife.

Evidence? We're not in court. I get the impression there are a couple of wanna-be attorneys here. Are there any real labor attorneys on this board?

You just accept what someone posts? No, you don't -- you didn't accept what I posted.

"Consider this a warning. If you continue to provide incorrect information you can lose your right to post here."

LOL, what is that all about anyway? What is an OP? Original Poster? I said I was new here. Take it easy on me. I am not here to file a stress claim or anything. I just came for talking, not fighting a war. I am a nice guy, just ask my wife.

So your in the habit of calling people liars with no cause? for someone new (if you look I am as well) you seem to be off on wrong foot already getting warnnings

Panther,

You work in Loss Prevention right? I read your site and found your stated goal admirable. I am really not hear to argue every single item. Law is law. Are you a lawyer? A labor attorney? I am not. I can read though.

How about the ScottB? I could have sworn I just read yesterday that if an employer ever had 50 employees and went below that 50 then people still employed there would be covered by FMLA.

cbg interprets law -- in what capacity? As an attorney? If not then it is mere opinion, same as mine -- other than being "moderator" with the power to delete posts, ban, etc. Big deal.

EBates didn't answer the question: Have you ever had 50 employees? What do you plan to do when this woman has the baby and needs even more time off? Fire her?

I don't take what people say at face value --quite the contrary.

So your in the habit of calling people liars with no cause? for someone new (if you look I am as well) you seem to be off on wrong foot already getting warnnings

I called who a liar? No one. I asked a question.

I am off on the wrong foot according to whom? A moderator? I am getting warnings? LOL, so? This is the USA and although the moderator can ban me, delete me, take me to task, etc. I still have the right of free speech. I haven't violated any rules. I am not an attorney and asked who was. I am still waiting to hear who is.

I think we have some pretend "I know the law better than you" attorneys but so far haven't seen any real ones pop up.

I never called anyone a liar. Warnings? Does it matter? It is a forum and I've done nothing wrong except ask question and offer advice. Isn't that what it is about? I better go read the whole rules so I learn how to behave.

I do apologize.

PS - I don't look at when members joined etc. It doesn't matter to me. We're all people and all people are equal.

If you read my post I was not argueing FMLA or any statute I was stating what I believed was OP's question and what I believed was OP's intent. Now if there is a law that covers Op question then someone should post it.

If you read my post I was not argueing FMLA or any statute I was stating what I believed was OP's question and what I believed was OP's intent. Now if there is a law that covers Op question then someone should post it.

And you've been advised several times that FMLA does not apply. Therefore, you need do no more for this pregnant employee than you would do for any other employee with the same type of attendance issues due to, for example, a broken leg or a heart attack. Nothing more, nothing less.

Take it easy revenire,let me try to answer some of your questions.
I get the impression there are a couple of wanna-be attorneys here. Are there any real labor attorneys on this board?.....I think we have some pretend "I know the law better than you" attorneys but so far haven't seen any real ones pop up.

Yes there are about 5 attorneys which is 3 more than last year,hopefully we will get more. One actually does a radio show in Ca. Listen to his shows you will get some good insight into some basic employment law topics. http://www.laborlawradio.com/ As far as how often they pop up it is not as often as everyone would like but their busy people. They rarely get involved in these type of squabbles.

What is an OP? Original Poster?
Correct.

Are you a lawyer? A labor attorney? I am not. I can read though.
From the looks of your posts you need to read a little more this stuff not as easy to read as you think. There are lots of twist,and turns. You are making the mistake of viewing this from how things are done at your shop. A company can exceed the legal requirements. So if you work at a company that has a liberal family leave policy to include colds with just a phone call. Thats fine,but your company is not the law of the land. Your basing your answers on how things are done where you work. You have to base your answerers on the Federal,and State regs. Where I work the company has given one year leave of absence for hardships,however that is not in the contract or any where in law. It would be a mistake for me to base what my company does on law. If I did that everyone that posted asking if they could take a year off from work,because their wife or mother is dieing ,and I answered yes given the limited contexts of how my employer handles it. Naturally my answer would be wrong.
I can not base my answer on how my company handles things,from your posts it appears that is what you are doing. Unless the poster works where you do there is a good chance your answer will be wrong. To get the answers correct you got hit the books,and even then you may get wrong,but you have to make a good faith effort.
I think that is what the other posters are saying to you,however you are frustrating them.
JoeC

No, it is not true that if the employer EVER had 50 employees they qualify. Scott posted the exact statute as to when FMLA applies even if they don't have 50 employees now. If the employer had 50 employees two years ago, for example, but has not had 50 employees at any time this year or last year, FMLA would not apply.

READ the statute.

If the employer ever had 50 employees FMLA could be used. That is what I read. Do you need a link to the law? I could be mistaken, or there could be a time limit. I asked the employer if there ever were 50 employees because I read somewhere in the law that if any employer had 50 employees the employees left would be able to still use FMLA. I never received an answer so, to me, the FMLA aspect isn't settled.

This employer could have asked an attorney in their respective state about this. Why would anyone come to a web forum for legal advice?

I asked elsewhere: are there any attorneys here? You'd be surprised at what they know about labor laws. They could clear this up real fast.

Have a nice day.

The reason you wont find a link to any law saying "if the company ever had 50 employees (even if it doesnt now),it is subject to FMLA, is because that does not exist.

This (http://www.nfib.com/object/IO_23699.html) link has the wording you might be looking for. It says has 50 employees not had.

Here is that line "Which employers must provide FMLA leave?
Employers who have 50 or more employees are required to comply with the FMLA."

Driectly from the regs:

e) A private employer is covered if it maintained 50 or more
employees on the payroll during 20 or more calendar workweeks (not
necessarily consecutive workweeks) in either the current or the
preceding calendar year.
(f) Once a private employer meets the 50 employees/20 workweeks
threshold, the employer remains covered until it reaches a future point
where it no longer has employed 50 employees for 20 (nonconsecutive)
workweeks in the current and preceding calendar year. For example, if an
employer who met the 50 employees/20 workweeks test in the calendar year
as of August 5, 1993, subsequently dropped below 50 employees before the
end of 1993 and continued to employ fewer than 50 employees in all
workweeks throughout calendar year 1994, the employer would continue to
be covered throughout calendar year 1994 because it met the coverage
criteria for 20 workweeks of the preceding (i.e., 1993) calendar year.

Emphasis mine.

Please show me where in these regs the employer is forever considered a covered employer if they have EVER had 50 employees. It seems quite clear to me that they would only remain a covered employer throughout the end of the subsequent calendar year, or until they once again had 50 employees.

You should read on, and read deeper. If an employer ever had 50 employees then they would be covered. If I am wrong I do apologize. Teachers are covered whether there is one or one thousand.

Take care.

You are wrong. The employer must have had 50 employees for each workday in at least 20 weeks out of the last calendar year or the current calendar year to be covered. Also, see what cbg said regarding employers who once had 50 employees but later drop down below 50. Read it again.

Furthermore:
"(c) Conditions for which cosmetic treatments are administered (such
as most treatments for acne or plastic
surgery) are not ``serious health conditions'' unless inpatient hospital
care is required or unless complications develop. Ordinarily, unless
complications arise, the common cold, the flu, ear aches, upset stomach,
minor ulcers, headaches other than migraine, routine dental or
orthodontia problems, periodontal disease, etc., are examples of
conditions that do not meet the definition of a serious health condition
and do not qualify for FMLA leave. Restorative dental or plastic surgery
after an injury or removal of cancerous growths are serious health
conditions provided all the other conditions of this regulation are met.
Mental illness resulting from stress or allergies may be serious health
conditions, but only if all the conditions of this section are met."

Here's the link: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.114.htm

A cold is specifically NOT considered a "serious health condition." If you had an employer who placed someone on FMLA because she or he had a cold, then your employer was administering FMLA incorrectly.

As for the OP's situation, yes, you can place her on leave if that is what you would do for anyone else wjo needed to be away from the office the same amount of time. FMLA does not apply here, nor does your state have a similar law with a lower threshold. The only law that applies is the Pregnancy Discrimination Act which only requires you to treat her the same as you would any other employee with a medical condition of a similar duration. She doesn't get any special treatment, nor can she be treated any less advantageously. The law does not specify how much leave you must extend.

If she can work from home and that is an option based on business needs and her own health, great. If not, you are not violating any law by not offering this. No law requires you to allow employees to work from home.

"A cold is specifically NOT considered a "serious health condition." If you had an employer who placed someone on FMLA because she or he had a cold, then your employer was administering FMLA incorrectly."

Yes, but the doctor calls the shots on that -- not you -- a medical doctor.

Here's a good link for people:

http://www.damox.com/legal/filing-a-lawsuit.htm

"Please show me where in these regs the employer is forever considered a covered employer if they have EVER had 50 employees. It seems quite clear to me that they would only remain a covered employer throughout the end of the subsequent calendar year, or until they once again had 50 employees."

Did I ever say "forever"? Please show me where and if I did say "forever", as in eternally, etc. I do apologize on bended knee. I asked if the employer ever had 50 employees. I read the law. I believe I understood it but clearly you're much more of an expert than I am. My expertise in law comes from watching Law and Order. :)

I asked and the fact that the question was never answered by the employer makes me wonder if this employer had 50 employees during the time period alloted.

This firm has never had, nor does it currently have, 50 employees.

This issue has now been resolved. Our employee has agreed that for the remainder of her pregnancy and subsequent maternity leave she will be on unpaid leave, and we have agreed to hold her job for her return.

Thank you, everyone, for your input.

Yes, but the doctor calls the shots on that -- not you -- a medical doctor.


The doctor calls the shots on...what, exactly? The law? The FMLA regulations? Hardly. I'm not sure what you're trying to argue. I'm also not sure it matters - the law clearly shows that you are incorrect. We've all provided links, explanations, etc. You've provided nothing but blanket statements that you've failed to support with regulations, court cases - anything, really.

It's my sincere hope you'll choose to stop posting on the board. I'm not sure what you're trying to accomplish by arguing with everyone who points out that you've posted wrong information. I do know that I personally will be ignoring your posts from now on.

"A cold is specifically NOT considered a "serious health condition." If you had an employer who placed someone on FMLA because she or he had a cold, then your employer was administering FMLA incorrectly."

Yes, but the doctor calls the shots on that -- not you -- a medical doctor.

Here's a good link for people:

http://www.damox.com/legal/filing-a-lawsuit.htm

Just because a doctor writes a note or fills out the paperwork for FMLA does not make it automatically FMLA. If what the doctor writes does not support the leave being FMLA, it isn't. For the common cold, it doesn't matter what the doctor writes, it isn't a serious health condition any way you slice it. Not that this has anything to do with the OP's situation one whit as pregnancy complications do fall under FMLA but this employee does not.

Hi Joe -- nice to meet you and thank you for the advice.

Yes, law is complicated. I had a meeting with my family attorney today over what would seem to be a simple matter: a will.

My opinion is that it is one thing to copy and paste a law and another to actually understand it and that is where actual attorneys come in.

I am not making my judgments, or offering advice, based on my place of employment. I've also been an employer and had two businesses and have one now.

I am not claiming to be a legal expert on labor law. I don't believe any of us here are and I've met labor attorneys that were not either. :)

I don't know how you are able to ascertain what I've read, what efforts I've made, etc. from posts. I didn't know anyone was keeping score either.

People tell me FMLA doesn't apply to the common cold. Well, I have news for them: I had it approved for a common cold. Know what else? It was not administered incorrectly. The person who said so was cutting and pasting and if they had actually read what they zealously copied and pasted (as if that proves anything at all) they would have seen that the common cold is applied in FMLA. They actually proved my point in bold. These people acted arrogant. I don't care for that -- especially when the person is flat out wrong.

"Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or
orthodontia problems, periodontal disease, etc., are examples of
conditions that do not meet the definition of a serious health condition
and do not qualify for FMLA leave."

I can copy and paste too. The keywords above are: "Ordinarily, unless complications arise" and this if proof enough that yes, the common cold can be used for FMLA leave/time/whatever you folks enjoy calling it.

Civility is needed and not this all-knowing tone from some quarters (especially when they were wrong). Arrogance is really not a virtue.

Anyway, Joe -- no need to beat the dead horse. EBates never answered the question about the 50 employees and that makes me a bit suspicious -- call me paranoid. ;)

Take care and I hope you're having a good day.

Your answer said, if an employee has ever had 50 employees, they are subject to FMLA.

You placed no qualifiers on it. That means forever as you have defined it.

Additionally, the poster said, in post #5, that they had only 25 employees. The only one who has suggested that there were ever additional employees is you.

And this thread is now officially out of hand.