Fired During Pregnancy Leave – Ask HR Bartender

by Sharlyn Lauby on September 4, 2013

Today’s reader note deals with pregnancy / maternity leave – a very sensitive situation.

I was sick from Hyperemesis gravidarum so the doctor gave me a note to take 60 days rest. Since I didn’t qualify for FMLA, HR said they would give me a leave of absence.

About 30 days into the leave, HR requested documentation and I supplied the doctor’s note. HR replied that I need to resign my position or return-to-work. I contacted HR to work out a time to return-to-work and they said I was already terminated.

Now HR says my position was filled. There’s another one open in different department, but I would have to go through the interview process as a new hire. I feel wrongly treated and misled.

This is clearly one of those stories that prompts more questions than answers. While it’s tough to address the specifics of this situation, there is information about leaves of absences that can be very helpful.

So I reached out to my friend Heather Bussing for some insight. She’s an employment attorney specializing in training and preventative advice for businesses. Heather is also a regular contributor to HR Examiner.

First, this reader brings up Hyperemesis gravidarum. According to Wikipedia, it’s a complication of pregnancy. We heard a bit more about it when Kate Middleton was hospitalized early in her pregnancy. Since it’s pregnancy related, can you share with readers a brief explanation of what the U.S. Pregnancy Discrimination Act covers?

pregnancy, pregnant, leave, discrimination, EEOC, OSHA, FMLA, Heather BussingThe Pregnancy Discrimination Act was an amendment to Title VII that makes pregnancy an official protected class, along with the others such as race, gender, religion, national origin. It means that employers cannot discriminate in making employment decisions because an employee is pregnant. The Equal Employment Opportunity Commission (EEOC) says the Pregnancy Discrimination Act means:

  • An employer cannot refuse to hire you because of your pregnancy-related condition as long as you are able to perform the major functions of the job.
  • You cannot be fired, demoted, or denied a promotion because you are or may become pregnant.
  • Your employer may not single out pregnancy-related conditions for special procedures to determine your ability to work but may use any procedure used to screen other employees’ ability to work.
  • Your employer cannot force you to stop working and take pregnancy leave at any time during your pregnancy if you are still willing and able to perform your job.
  • If you are temporarily unable to perform the functions of your job due to your pregnancy-related condition, your employer must treat you in the same manner as any other temporarily disabled employee, by providing modified tasks, alternative assignments, disability leave, or leave without pay.
  • Your employer must give you the same level of rights, benefits, and reinstatement privileges given to other workers who are temporarily disabled.
  • If an employer’s health plan includes spousal coverage, the employer cannot deny coverage for the pregnancy care of a male employees’ spouse.
  • Pregnancy-related benefits cannot be limited to married employees.
  • Employer-provided health insurance must cover pregnancy-related conditions on the same basis as costs for other conditions.

The Pregnancy Discrimination Act does not really give pregnant employees any special entitlement to leave due to pregnancy. But employers must give pregnant employees the same leave they give other employees who are temporarily disabled due to a medical condition. That said, there are other laws that do apply when an employee needs time off for pregnancy, usually FMLA and state laws. Sometimes the Occupational Safety and Health Act (OSHA) also applies if it is unsafe for a pregnant employee to work because of exposure to toxic chemicals or it would endanger her, the fetus, or others.

Both you and the reader have mentioned the Family Medical Leave Act (FMLA). We’ve talked about FMLA before so you don’t have to get into all the specifics. But are employers required to give employees leave if they don’t qualify for FMLA?

First, complications due to pregnancy generally DO qualify for FMLA leave. It covers any serious medical condition that requires a leave from work, including complications due to pregnancy. It would be a pretty ineffective law if it only started after the baby was born.

So under the FMLA, employees get 12 weeks of unpaid leave related to pregnancy which includes any medical issues that arise during pregnancy, then time for bonding afterwards. Employees are also entitled to use any paid leave and the employer has to allow the employee to return to her job after the leave. Some states provide longer leaves.

Any medical condition can potentially trigger FMLA leave. It is really up to the employee and her doctor to determine what leave is needed and when. In other words, if the situation requires an employee to be gone from work for more than a few days or intermittently over time, it’s potentially FMLA.

If it is not serious, like a cold or 24 hour stomach bug, then the employer’s general leave policies apply.   Employers are free to make rules about when leave can be taken and what proof of illness, if any, is required.

Federal law does not require employers to give (non-FMLA) sick leave.  Some states (Connecticut) and cities (New York, San Francisco, Seattle, Portland, Milwaukee, Philadelphia, and Washington DC) do have mandatory paid sick leave. But other states (Kansas, Wisconsin, Tennessee, Mississippi, Louisiana, and Arizona) have passed laws making it illegal for cities to require paid sick leave. Legislation on sick leave is pending in many places and it’s a good idea to know what laws apply where you work.

The Pregnancy Discrimination Act and FMLA are Federal laws. Out of curiosity, are there state laws that govern pregnancy and leaves that employers and employees should be aware of?

Yes. A few states have additional protections and require employers to provide longer leave than the FMLA.  California and New Jersey have paid pregnancy leave laws that provide state benefits while either parent is on pregnancy leave and allow additional time. However, the state laws do not always provide job protection beyond the FMLA time period.

You mentioned “job protection”. I know under FMLA, an employer needs to keep an employee’s job open while they’re on leave. What about for other leaves of absence?

For leaves not related to specific statutes such as the ADA or FMLA, the employer generally has discretion about whether or not the employee can return to her same or an equivalent job. However, even in instances where an employee had used up all of his FMLA, some courts have found that terminating the employee can still be discriminatory based on disability or some other protected factor.

It’s good to look at the overall fairness of what is going on.  If an employer does not want an employee back due to performance or some other reason, an offer of severance in exchange for a full release is the best way to handle it.

Can an employer “cancel” an employee’s leave of absence?

Employers cannot cancel sick leave, FMLA, or approved PTO.  If an employee is sick or temporarily disabled, the employer generally cannot require them to work.

There have been several cases where an employer learned that an employee lied about the need for FMLA and was doing something fun instead. Often the employer discovered this through Facebook photos and status updates. When the employers fired the employees, they sued.

In some states, the courts have said firing the employee for misstating the reason for leave is okay because the employee abused the leave. In California, at least one court has said once the employer approves the leave, the employee is off-duty and the employer cannot discipline the employee for off-duty conduct. Since different states treat discipline for off-duty conduct differently, it depends on state law.

Lastly, if I’m an employer or employee and have questions or concerns about the Pregnancy Discrimination Act or Family and Medical Leave, where can I go to get answers?

The EEOC has some helpful information on the Pregnancy Discrimination Act. The Department of Labor has information on the FMLA.

Most states will also have information about pregnancy leave online. And here is a publication from the National Partnership for Women and Families that discusses state laws on pregnancy leave.

For more detailed advice, talk to an employment attorney in your state.

As always, my thanks to Heather for sharing her experience and expertise. Please do take a moment to check out her other writing on HR Examiner and follow her on Twitter.

And thank you for sending your questions! I really appreciate having the opportunity to research answers and provide information.

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Shirley September 4, 2013 at 10:04 am

I believe the FMLA allows for a total of 12 weeks unpaid leave for maternity; not 12 weeks plus time for bonding. I may be wrong but I don’t think so.

Heather Bussing September 4, 2013 at 11:54 am

Hi Shirley,

The FMLA includes time for bonding after the birth of a newborn or time after the adoption of a child. The time must be taken within 12 months of the birth/adoption. Both parents are eligible to take bonding leave under the FMLA.

Here are the Federal Regulations that apply. http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=abbd92cdff37c5d32de741cc5ccc1e81&rgn=div5&view=text&node=29:3.1.1.3.54&idno=29#29:3.1.1.3.54.1.489.19

Jennifer September 4, 2013 at 11:30 pm

Great article.
Unfortunately while you can take time off to bond, if that baby then dies of a complication after birth, your FMLA leave can be revoked.
It’s not perfect so we need to keep pushing for a better FMLA.
Jennifer recently posted..Parent’s Stories of Loss 2013

Jim September 5, 2013 at 10:03 am

This sounds like a first responder HR error! If an individual is not qualified for FMLA and needs to take a leave. The organization needs communicate up front as to the status of their employment during their leave. It sounds like she was giving the impression that her job was secure.

Of course they need to treat like any other disability. And if this treatment was contrary to the past treatment of other employees then you have a double responder HR Error.

Just my two cents.

Sharlyn Lauby September 5, 2013 at 3:37 pm

@Jennifer – I wasn’t aware of that. Thanks for sharing. Even though FMLA has been around for a while, I agree – it could stand some revision.

@Jim – Good point about being consistent with past practice. Thanks!

Trish McFarlane September 5, 2013 at 5:40 pm

Great article. Just shared it with my entire team. Thanks for posting!
Trish McFarlane recently posted..Giving Your Expertise (And Audience) Away

Sharlyn Lauby September 6, 2013 at 8:20 am

Hi Trish. Thanks for the comment and sharing!

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