Pregnancy Leave / Less Than 1-year of Service

Mel in CO · October 2002

Prior to my posting, I would like to note is that due to company size, we are not technically covered by FMLA however to be safe we have what we call a “Family Medical Leave Policy” that runs exactly like FMLA.

I have an employee, which we just converted from temporary employment to full time employment at the beginning of this month. The employee is very familiar with our policies concerning maternity leave / FMLA leave. Over the past two months, we have had 3 employees announce that they, or their wives are pregnant (I am one and all of us will have 1-year employment with the organization qualifying us for “FMLA” leave). I think once the announcements happened, this employee became very anxious to start her family because on her third day of employment with the organization she started asking about our leave policies. She wanted to know if we would consider changing the leave policy for her and her situation if she became pregnant prior to her 1-year anniversary date with the organization. She wanted to know if we would still grant her the same amount of leave although she has not completed 1-year of employment? She tells us that she is not pregnant currently but she has admitted that she has been trying. We all also know that this is not an exact science and it could take her a lot longer than 2-3 months to become pregnant but I think that she is very hopeful or just a very diligent planner.

I am trying to look at this situation as a “temporary disability” leave situation since that is basically what we are talking about. I am trying to look at this situation in the sense of what would we do if any employee was in a serious car accident prior to his/her 1-year anniversary and needed some time off – what types of consideration would we give the employee? However, one thought keeps coming up – a female can control when she becomes pregnant and a person cannot control a car accident or other serious injuries (this employee has held off starting a family for 10 years which she admits). She also knew our policies prior to accepting the job offer to start full-time employment with our organization.

My question is what type of consideration do we give to this employee if she does have a baby prior to her 1-year anniversary? What does your organization do in these types of situations? Do you hire a temp individual until the employee returns? Do you only give an employee 6 weeks or do you give them the same consideration as individuals that would qualify for FMLA leave regardless of their time with the organization? Thank you!

PAhr · October 2002

The company can treat this however they would like but it also means that you must give the same consideration to any other employee in the same situation. I would say that even though she was a temp her time of employment with the company still qualifies as time that should be counted toward FMLA eligibility. The only question is how long has she been a temp. If it was for three months then she would be eligible for the coverage in nine months (just enough time to make a baby, which actually takes ten months). Whatever the company does should be followed for anyone after.

Mel in CO · October 2002

I have to admit that I am surprised that her temp employment time with the organization would count toward her eligibility for leave. We don't count her temp employment toward any of other employment considerations (vacation leave, insurance enrollment, performance reviews, etc.). This employee was a temp employee for 5 months prior to being hired on full time with our organization. We have never counted temp employment time as eligibility for other employees that we have hired full-time so wouldn't we be making a special consideration just for her then in this case in turn being unfair to other employees? Or under FMLA guidelines are you required to count temp employment?

I did ask my superiors what have they done in other cases when an individual needed temporary disability leave and what considerations they gave that individual. I was trying to gain a basis of what we have done in the past. The answer that I received was that in 20 years of operation, a situation (regardless if it was pregnancy leave or not) such as this has never arisen leaving this un-chartered territory for us.

awilliams · October 2002

You pose a few questions, let's break them down. First - we need to know when she became your employee for FMLA purposes. You called her a temp, does that mean she was only working for you on a temporary basis, or that she was working for a temporary agency? It may not matter, because if your company exercised control over her, even though you paid a temporary company who then paid her, she is still counted as your employee for FMLA purposes. I know, it may come as a surprise, but that is how hte law is written. So, you need to look back to when she first started working for you and calculate 12 months from then.

Second, she must have worked at least 1,250 hours during those 12 months.

Third, once she meets the 1 year/1250 hour requirement, she is eligible for FMLA leave. If she doesn't meet those requirements, she is not eligible. As you said, you could offer her some voluntary leave. However, once you do this for her, you must do this for everyone.

In addition, I would feel remiss if I didn't mention that while it is good to think to the future, in situations such as pregnancy, you never know what is going to happen. You don't know when she'll get pregnant, if she'll decide to continue working, or if she or the baby will have any health conditions. All of these factors will make a difference in your FMLA calculation.

A good reference is our Special Report: FMLA Leave: A Walk Through the Legal Labyrinth. It offers tips and techniques for all the situations listed above.

Good luck!
Anne Williams

Mel in CO · October 2002

Anne, thank you so much for your advice. Your reply has helped me out. This employee was working for us both on a temporary basis and through a temporary agency. What happened was she was working in one of our other departments to get us through the busy season - working through a temporary agency. We did not have any full time openings back in that department and were probably planning on ending her assignment by the end of November. However, an individual in our Accounting/Receptionist area left and we felt that this individual met all of the qualifications for the position. She continued to work for us for another month through the employment agency and then we converted her to full time employment at the beginning of this month. So basically, she worked for us through the employment agency for 5 months prior to being hired on full time with the organization. From your post, I should count those five months toward her leave status technically making her eligible for FMLA leave April 2003. She has also met the 1250-hour requirement. I am fairly new to the FMLA ball game and I was unaware that temporary employment counted toward leave eligibility.

I also agree that right now we are playing a “what if” game. I think that this employee is very excited to start a family since she has held off for a few years until starting her career and she has become very anxious now that others around her have been announcing their pregnancies. I also do appreciate her at the least notifying the organization that she is trying but again, everyone is uncertain at this point of what will happen in the future and what turns we may take in the road.

Thank you again for your advice, you helped me out.

awilliams · October 2002

Glad I could help. I applaud you for going beyond your job to give this woman some very helpful information. If you want some more confirmation, the regulations which deals with joint employer status under the FMLA is 29 CFR 825.106(d).

If she will be eligible for FMLA in April, and isn't pregnant yet, she'll certainly be covered by the time she needs it, which will be nice for her to know!

funkysan · October 2002

Could you explain hte law? I was surprised to see that the time a temporary spends in a facility is counted toward fmla after they become an employee. Is this state law or federal law?

Rockie · October 2002

You may want to check with your labor attorney on this, but it's my understanding that if you are not required to offer FMLA leave, and you do so voluntarily, you have to comply with all the rules and regulations that are associated with the Family & Medical Leave Act.

It is a dangerous game to play to try to pull any part of pregnancy out of the equation. Don't even go there. Pregnancy is, by law, to be treated the same as any other temporary illness or disability. Whether someone has "control" over a situation or not would not enter into this scenario.

arodriguez · October 2002

You may also want to check your state law to make sure there aren't regulations covering pregnancy. Washington State, for instance, has a law that requires employers to grant time off to a pregnant/post-partum employee who is "medically unable" to work.

Also, in general terms, you cannot treat a pregnancy any differently than you would another "short-term" disability.

Pregnancy Leave / Less Than 1-year of Service

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