Pregnancy Discrimination
cbcolorado
11 Posts
We have a pregnant employee who has some medical issues going on now that she is late into her pregnancy - something similar to Toxemia (sp?)- high blood pressure and swelling.... She has told her boss and several that her doctor says he is concerned for her and the baby's health and has recommended bed rest until they (the doctors) can determine if the baby is developed enough to induce labor. The employee says she does not want to go on bed rest and miss work because she needs to save her "time" for when the baby is born. First of all, we are all concerned for the welfare of this employee and her baby. Second, we are concerned with how this could affect us an empolyer (if something happens while she is at work......) I know that generally a woman may not be forced to go on leave as long as she is able to work....my question is, can we require her to bring in a physicians note stating she is able to work (with whatever modified duties he/she may deem necessary)? If the doctor's note states he recommends bed rest and cannot give her permission to continue work, can we insist she go on leave? Appreciate your help.
Comments
If the employee isn't seeking a leave due to incapscity from the pregnancy, how did this situation come to light? Was a manager pushing the point that since she is pregnant, she should be on leave? Why would the employee say anything about what her doctor told her if she wasn't seeking a leave or a job accommodation of some kind?
Is the employee able to work? Is she performing competently? Is she atrtibuting any attendance or work performance problems to her pregnancy?
If there is nothing occurring on the job and the employee isn't requesting a leave, then there's no place to go.
If the employee is having work problems, and the doctor isn't saying bed rest is required but only recommending bed rest, get a second opinion.
I know this sounds cruel but stay focused on work issues and not the pregnancy. The pregnancy only comes up if there is a request for leave on that basis or work problems that are attributed to or seem to be related to the pregnancy. Concern for the welfare of the fetus and the mother is not a basis for putting the employee through the hoops from the employer's perspective.
If it turns out that the employee must go on leave due to medical reasons, and she is eligible for FMLA, then follow your policy in wherether the leave will be FMLA or not (be consistent with what you've done in the past with other employees).
You mentioned ADA. Pregnancy is not covered under ADA since it's a temporary condition. HOWEVER, if the employee does have a permanent or long term medical condition that significantly impairs one or more major life activities and which either exacerbates the pregnancy or vice versa, then she could fall under ADA on that basis. But, if so, leave, as a reasonable accommodation is usually one of the last things to look at under ADA, if she isn't qualified for FMLA; and giving her FMLA leave, if she is qualified, would serve as a reasonable accommodation.
The only other possibility that would possibly let her achieve her desire is perhaps the FMLA year ending during the pregnancy leave or when the child is born. Even if she has to retun to work because the 12 weeks ended and the FMLA year isn't over, she still has one year from the date of birth of the child to take and complete leave to bond with the baby. So, she could take baby bonding leave at the next FMLA year perhaps. It all depends on how your company determines the FMLA year.
You mentioned getting a second opinion if the doctor is just recommending bed rest - the problem is, we don't have any written documentation at all, just what the employeee is telling us - that is my question, can we REQUIRE her to bring a doctors note stating either it is okay for her to work and with what restrictions (if any) or stating she is unable to work.
The reason she does not want to miss work right now is because she cannot afford to be off of work for very long- she is FMLA eligible but plans to take only 3 weeks off after the baby is born because she has vacation pay available for those 3 weeks.
The reason she is telling us what her doctor has said is simply because this office is small - the employees are friends and she is concerened for her health as well as the babies BUT she does not want to miss work yet.
From an employers point of view and having this knowledge - can we require a doctors note in order for her to continue working until the baby is born? She has a potentially serious condition where the effects could occur at work - example: if the doctor wants her laying down because by not doing so, her blood pressure could sky rocket and she could pass out....what if this happens at work and she injures herself here - see what I mean - we would like to have a doctor's note stating what her limitations are so that we could accomodate them and if the note says she is unable to work - can we refuse to let her return to work until she has a doctors release. Whew! This is tough! Thanks for any advice.