can an employer punish you for following a doctors orders?

[egmccrohan]

My fiance is a bartender at a local night club in Las Cruces, NM. On
Thursday February 09, 2006 she went in to the E.R. because of massive
bleeding. The nurse there did a blood test and it came back positive that
she was pregnant, the E.R. doctor told her that she needed to stay off her
feet for a few days, when we left the nurse gave her a letter to give to her
general manager that stated she was not to work until Monday February 13,
2006. On Friday February 10, 2006 she called her G.M. to let them know she
could not work. He told her that her working was not an option and that she
had to come in, she has been told that the company policy states that any
employee who can not work must give 8 hrs. notice which she did give. The
G.M has now cut back her work days to only working Fridays. In the 8 months
as an employee she has been noted for being extremely dependable (covering for other
people's shifts, being on call anytime they needed her to come in). This has
happened to a few other employees that have been sick and went to a doctor.

Is this legal???

[wwy]

unfortunately, yes. Unless she is somehow covered under the family medical leave act. the employer would have to have 50 or more employees, and she would have to had worked there for a year.
If that criterea is met, then see what another poster may say, as there are others more knowledgable of the FMLA than I.
but if not, then while unfair, it is not illegal.

[cbg]

A doctor's note has no force under the law. An employer is not required to follow a doctor's orders. Otherwise, it would be far too easy for an employee to get a note from a doctor (and yes, there are many doctors who would cooperate in this) saying they couldn't work, any time they just wanted a couple of days off.

The various laws that affect time off for illness/injury/maternity are the Americans with Disabilities Act, the Pregnancy Discrimination Act, and the Family Medical Leave Act.

Pregnancy is not normally considered a disability for which accomodation is required under the ADA. The ADA does not cover temporary conditions, including pregnancy. While it occasionally happens that there may be a related condition that does apply, nothing in your post suggests that this is the case.

The Pregnancy Discrimination Act says that a woman who is pregnant has to be treated exactly the same as if she was not pregnant, and is subject to all the same rules and regulations as anyone else. So as far as the PDA is concerned, this would only be illegal if a similarly situated employee with, say, bronchitis or a sprained ankle, would not have been required to give 8 hours notice under the same circumstances.

So unless she qualifies under FMLA (ALL of the following must be true - the employer has a minimum of 50 employees within 75 miles of her location; she has worked for this employer for a minimum of 12 months; she has worked a minimum of 1,250 hours within the last 12 months) then it is unfortunate but legal.

If she DOES qualify for FMLA, post back for more information.

[egmccrohan]

This is from the E.E.O.C.


Thank you for your email. You asked a question about pregnancy discrimination.

Pregnancy discrimination involves treating a woman unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her the same as any other temporarily disabled employee. For example, the employer may have to provide modified tasks, alternative assignments, disability leave or unpaid leave.

Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.

For more information on FMLA, contact the nearest office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor.

[Pattymd]

We know that. I'm just not sure how it applies here.

[cbg]

The fact that she was pregnant does not necessarily mean that any and all adverse action was taken BECAUSE she was pregnant. In order to have a valid claim there still has to be some evidence that a similarly situated employee with a non-maternity condition would have been treated differently.