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Maternity and FMLA Maryland

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  • Maternity and FMLA Maryland

    We have an employee who is pregnant - originally I was not going to start her FMLA leave until the baby was born. However, she has been taking several days off, sometimes 3 or more in a row, due to morning sickness. Therefore, I started her FMLA. She is now upset as she say she will not have her full 12 weeks after the baby is born. Am I correct?

  • #2
    yes, especially if it is 3 days or more in a row. I was there...hyperemesis...not fun.... But do get the doctor paperwork now. If she is that sick, her doctor would be watching her closely (said the lady who lost 16 lbs in 9 days while pregnant with the twinkies)

    There's nothing to say the employer can't be more generous than the 12 weeks protected once you all know how much FMLA protected time she has left at delivery.


    • #3
      You are correct. If she is off for a serious health condition now, that comes off the 12 weeks she is entitled to for the year. It is not 12 weeks per condition.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


      • #4
        My mother, my daughter and I went through that horrible 24-hour sickness during our pregnancies. Ugh! Crazy anecdote about that time: My daughter was having horrible mornings due to her pregnancy and did have to either come in late or miss some days at her job. When her supervisor (who seemed to suddenly dislike my daughter when she discovered my son-in-law was black) called her in for a meeting due to her attendance my daughter brought up about FMLA. The supervisor wanted to know just where she got that information and who was coaching her. My daughter pulled out her employee handbook and said, "I got it right here, in the handbook."

        Supervisor was speechless. Never hurts to know your handbook, the law and to have a mom in HR.


        • #5
          What the employee does not understand is that I am doing this for her own protection. Her supervisor is not happy at all about her being out "all of the time". I explained to the supervisor that she is protected by FMLA and that pregnancy and morning sickness being a complication of pregnancy is protected under FMLA. But now the employee is fighting me on this because she wants to have all of her 12 weeks for when the baby is born. Well if you don't give me FMLA paperwork I can hardly tell your supervisor that you are out because of complication of a protected reason!


          • #6
            As I have told people before, it is the right of the employee to refuse to return FMLA paperwork because they (wrongly) believe it it their right to "save" their FMLA for the time they want to use it.

            However, if the time is not protected by FMLA, it is the right of the employer to apply standard tardiness and absence standards.

            If that means she ends up being disciplined for non-protected absences, too bad so sad but she had the chance to have the time protected. She doesn't get to have a bite out of both apples at once. Either it's FMLA and it's protected and she can't be disciplined for it, or it's not FMLA and it's not protected and she can be disciplined for it.

            Just make absolutely sure that you've followed the law right down the line with regards to notices and giving her the paperwork and waiting the mandatory time for it to be turned in before you deny FMLA. If you haven't, this can backfire badly on you.
            Last edited by cbg; 10-03-2017, 10:01 AM.
            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.


            • #7
              Jan and Jean are both pregnant. You treat Jan one way and Jean a different way. At least one of them has good grounds to sue you. It is fine treating an employee better then legally required but then you have to treat ALL employees with a similar condition in a similar manner equally better.

              Figure out what your company wants to do, write a policy, then FOLLOW THE POLICY WITHOUT EXCEPTIONS.

              Smart employers who want to play favorites write a check and call it a bonus. They do not play games with benefits. I am not saying that this is never illegal, but it takes very good lawyers to make the case. Violate FMLA and any warm body lawyer can likely win.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)


              • #8
                It's important to follow your current policies consistently and uniformly. If an employee's situation qualifies for FMLA coverage, then the FMLA process must be followed regardless of whether she wishes to save her FMLA time. If this employee is given an exception then what about every other employee with a similar excuse. A precedent is being set. Policies will hold little weight in a lawsuit if it can be shown they weren't consistently applied.


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