FMLA mployee leave questions
September 8, 2010 8:47 AM   Subscribe

How do we handle a pregnant employee in terms of the Family Medical Leave Act?

We're a small company in Georgia (USA). Our HR department is off on vacation (told you we were small!). A good employee has recently announced that she is pregnant with triplets. We're a bit at a loss as how to handle it well, in a professional and legal sense.

We're all happy for her, but of course there's the question of how it will impact her work and the uncertainty of a high risk pregnancy. She's given no dates when she would be leaving, or taking time, which is fine for now. But in terms of the FMLA, what are are our responsibilities? We understand that she's entitled to 12 weeks of unpaid leave, which at the end of she can return to her position, or a similar one.

But does that 12 weeks of leave have to occur concurrently?

Doesn't she only have a year to take that leave? If so, is it a year from when she first announced the pregnancy to the office? Or is tied to the calendar year somehow?

Is she entitled to those 12 weeks every year?

Are there other sources for guidelines on how to handle this professionally and legally?

Is there certain paperwork we have to fill out under the FMLA?
posted by anonymous to Law & Government (10 answers total)
The DOL is your friend.

But really, unless she requests time off before your HR people are back, do nothing but congratulate her until they are back. If you really need to do something before that, you should find a lawyer to help you through the process, because getting this wrong can be much more expensive than a lawyer up front.
posted by dpx.mfx at 8:51 AM on September 8, 2010 [2 favorites]

I can answer a couple of your questions

The 12 weeks does not have to be concurrent in my experience. I've had employees with chronic conditions who take off for intermittent doctor's appointments over the course of the year- all tied to the same FMLA event.

There are 12 weeks total FMLA-covered leave available per one-year period. My understanding is that it's 12 weeks per calendar year, but one event may span multiple calendar years.

There's a lot of paperwork I have to fill out for my employees who are FMLA-eligible, but I don't know what the overall standards are. In most cases, eligibility is determined based on a doctor's assessment. I have a form that I give to my employees to give to their doctors, who fill it out and fax it to HR. I think that HR can actually make the determination whether an event is FMLA-eligible or not.

There's also some information on the DOL website.

Good luck to you and your employee!
posted by Shohn at 8:54 AM on September 8, 2010

You say you're a small company -- do you have 50 or more employees? If not, the FMLA does not apply to you. (However, make sure you treat pregnant employees and new mothers the same as you would any other employee off work for an illness or family responsibilities, or you could get fined and/or sued for pregnancy discrimination.)

If you do have 50+ employees, this fact sheet might help:
posted by Jacqueline at 8:56 AM on September 8, 2010 [1 favorite]

Are you sure she is eligible? From wikipedia:

"The federal FMLA does not apply to:

* workers in businesses with fewer than 50 employees (this threshold does not apply to public agency employers and local educational agencies)"

If they are, this DOL poster (pdf) says:

"Employer Responsibilities
Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility.

Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA-protected, the employer must notify the employee."

I believe the 12 week requirement is actually in a rolling 12-month period and does not have to be taken concurrently. Be aware that there may be additional state requirements, Tennessee requires employers to provide up to 16 weeks for pregnancy.
posted by ghharr at 9:00 AM on September 8, 2010

Yes, please treat her as a regular employee. Count on her to do her work the same as she always has, and don't make "accommodations" that she hasn't asked for. Unless her job is physically demanding she is likely able to function just the same as she always had. It's really horrible to be taken off the good/important work because you're showing a belly.

As you get closer to her expected leave time, you should sit down with her and discuss what her plans are. She's likely to use regular sick time for doctors visits during her pregnancy, and then take the twelve weeks in a chunk around the birth - perhaps a little before, and more later. But, of course, that can vary. You'll need to discuss coverage in her absence - are there projects that need to be handed to someone else? To whom/how will those be transitioned? Even if she says she'll be available or check in from home, don't expect or ask much.
posted by Sukey Says at 9:13 AM on September 8, 2010 [1 favorite]

Your company gets to pick the method to figure out how much time has been used in a year:

- a "rolling" year, where what the employee used a year ago today is subtracted from the total used, or
- a calendar year, where on January 1st you wipe all slates clean.

There are three separate FMLA scenarios to concern yourself with here:
- her medical needs, as documented by her physician,
- after the baby is born, the 1-year-long "bonding" provision, documented by the birth certificate,
- after the baby is born, his/her medical needs, as documented by the baby's physician.

Your employee gets 480 total hours to use for one or more of those reasons, in whatever year you use. The clock starts for her to get you documentation when she asks to use leave for an FMLA-qualifying condition, or, for the "bonding" thing, the day the baby is born. It gets quite complicated, and the feds tend to side with the employee, for a number of reasons.

Please, wait till your HR people get back before saying or doing anything. And, after they are all back and advised of your employee's condition, please arrange for FMLA/ADA training for your management team, including all supervisors and yourself.
posted by SMPA at 9:18 AM on September 8, 2010 [3 favorites]

Something to keep in mind: A lot of larger companies go above and beyond FMLA. Typically, they'll offer some amount of paid maternity leave (I've seen as much as 4 weeks) for a new mother.

Why do this? Two reasons. One, it makes benefits more competitive at a comparatively low cost (not everyone will give birth while working at the company). Two, it's actually less hassle for HR operations to offer a benefit better than what FMLA provides, because then they don't have to deal with the FMLA paperwork. FMLA is only invoked if the employee asks for an unpaid leave of absence.
posted by Citrus at 10:03 AM on September 8, 2010 [1 favorite]

FMLA is only invoked if the employee asks for an unpaid leave of absence.

Not true in my experience (depending on what you mean by unpaid leave of absence). I (male) could take FMLA leave for my recent daughter's birth, even though I was drawing vacation at the same time. In other words, I could declare I was taking FMLA leave, and charge vacation time, or not declare, and charge vacation time (of course I could have taken unpaid leave, too).

What I mean is that, or so I was told, the purpose of the FMLA distinction in this case was solely to provide the legal protection of the job guarantee provisions. I actually decided not to declare FMLA eligibility because:

* I had vacation time
* I didn't have to fill out the forms, so I didn't.
* I was only taking two weeks, which was a similar duration as some vacations.
* If I were to lose my job it honestly would have been for other reasons (losing a contract). So if I were unlucky enough to lose the job it would have been either for unrelated reasons or easy to make look like unrelated reasons, which meant I wouldn't have been protected.
posted by RikiTikiTavi at 12:42 PM on September 8, 2010

The company can require the employee to use paid time for their FMLA absence. The employee can request to use paid time, if paid leave is available under other circumstances (e.g. a vacation balance.) Everyone can agree to keep the thing unpaid. Even if the employee has no leave balances of any kind, the employer must permit them to be gone for 480 hours, if the certification and notice and other statutory requirements are met. The employer can start counting leave against the FMLA entitlement before the certification is back, and are not allowed to start termination proceedings, just because they know the leave is being used for an FMLA-qualifying purpose, but they must notify the employee that they are doing so (this is useful in cases where the employee had to leave suddenly and without warning - if you are in a coma, you are protected.) If the employee's job would have been eliminated (through, e.g., layoffs affecting the entire workgroup, classification, department, everyone at that seniority level, etc.) anyway, the employer has an affirmative defense against an FMLA violation claim.

I am not a lawyer, but I do work in HR (amongst other things.) I cannot stress enough how important it is to leave FMLA to the experts. We have to talk to our attorneys frequently, even though a handful of us spend hours every week in the nitty-gritty details of FMLA and can recite most of the contents of the DOL poster and opinion letters in our sleep.
posted by SMPA at 2:17 PM on September 8, 2010

To add to Citrus' point- I'm currently out on 8 weeks of fully paid maternity leave, so paid leave definitely exists and is a very attractive benefit.
posted by banjo_and_the_pork at 2:12 AM on September 9, 2010

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