Yet Another FMLA Question!

Rockie

This is my week for FMLA! The law states that employees are entitled to 12 weeks of leave (after they meet the eligibility requirements). We have an employee who has already taken 3 weeks of her 12 for surgery. She is coming up on a pregnancy where she basically is only entitled to 9 more weeks of FMLA. Her supervisor has no objection to her taking the additional time (9 weeks FMLA plus 3 more weeks). The supervisor can cover her absence.

Are there any repercussions for the company in doing this? Are we setting a precedent for areas where additional leave can't be covered?

Margaret Morford

Rockie,

You will probably establish a precedent that says minimally for pregnancy, an employee gets 12 weeks no matter how much FMLA they have used. Besides setting a precedent, you then have the employee relations nightmare of explaining to another woman that you can't cover her position so she doesn't get the extra 3 weeks. And if she happens to be in a protected class.... Don't do it. Give her 9 weeks and explain to her that you cannot give her the extra 3 weeks because you can't always give it to others.

My answer assumes that you have never allowed any one else more than 12 weeks of FMLA and/or other unpaid leave. Here's the mine field to check for. Have you ever had a woman go out on maternity leave early (high risk pregenancy and doctor prescribes 4 months of bed rest) and need more than 12 weeks in order to return after she has the baby? I still think that you're okay because you can argue that for medical necessity, you will grant more than 12 weeks. The employeee you describe will not have a medical necessity as long as she has a normal recovery from birth (6 to 8 weeeks). Hope that helps.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Rockie

Thanks Margaret. I felt that was the right answer, but needed validation!

bsa

Would you do the same for an employee who had heart surgery? Just because she is pregnant doesn't mean that she gets treated any differently from any other employee in a similar situation.

Rockie

Yeah, we would do the same thing for everyone. It just happens that pregnancy seems to come up more often than anything else.