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NY state - Pregnancy disability - reduced hours return? New York

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  • NY state - Pregnancy disability - reduced hours return? New York

    HI. I have been away from HR for a while and can't remember laws. I have an issue and unsure what to do so will outlien facts:

    1) we are a non profit with 25 employees (so I don't think we fall under FMLA if I recall correctly
    2) employee in question was hired in april 2010 (so hasn't been here 12 months, i also think that makes her ineligible for FMLA even if our agency did fall under it)
    3) she has been out since december on leave for medical complications arising from pregnancy.
    4( she filed Short term disbaility paperwork, didn't turn in remainder of papers to the state, and is now saying she is ready to return to work

    My questions:
    1) do i even have to worry about bringing her back b/c she doen's tfall under FMLA - I hired a temp in her absence, and am pleased with the level of work being produced (temp is also pregnant ! - but that isn't a problem at all!)
    2) if she returns do i have to take her back if she can't return to regular ft hours? I have a feeling dr will only clear ona gradual basis - 10 hours, then 20. etc.
    3) when she goes on actuail maternity leave, will she still be entitled to more leave?

    I realize if she doesn't qualify for FMLA this is all moot, but would still be interested anyway..

    also what is PDA - just stating that an organization has to treat a pregnancy like they treat any other disability? but in our case we don't worry b/c we do not fall under FMLA?

    Also, do i have any other issues to worry about if i dont bring her back? I have no problem with pregnancy or her, but would like to hire in the temp who is doing a much better job? thanks

  • #2
    You are correct that you do not fall under FMLA. You DO fall under the PDA, which says in effect, that you have to treat her the same as if she were not pregnant; the same as you would treat a similarly situated employee who had pneumonia or a broken leg. The PDA only requires 15 employees.

    You do not have to bring her back if you can show that her pregnancy has nothing to do with the decision; that there is a business related reason to hire the other woman, and that you would be making the same decision if the first employee was out for back surgery.

    Caveat - I am not where I can look at state laws at the moment; the above reflects Federal only. Maybe someone else will have state laws, or I can add them this evening.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


    • #3
      Since FMLA doesn't apply, NY only requires that you treat a pregnant employee
      as you would treat any other employee in a similar situation (example broken leg).

      No additional protection over federal.
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