How not to handle FMLA leave (Hint: Following the law isn’t optional!)

June 7, 2011
in Employment Law

Some employers believe that pregnant women aren’t entitled to time off for pregnancy-related matters because pregnant women aren’t disabled or unable to perform their jobs. That’s wrong and can land employers in big trouble.

The fact is that prenatal visits and even bouts of nausea are the sorts of things that Congress considered when covering pregnancy under the FMLA.

Whether employers like it or not, women taking work time for doctor’s appointment related to pregnancy or having to miss work due to nausea and vomiting are protected from discrimination and retaliation under the FMLA.

Recent case: Michelle Wahl worked as a teller for a Seacoast Bank branch when she became pregnant. She told her supervisors and HR she was expecting and asked about maternity leave. Management referred her to the employee handbook.

The handbook stated that FMLA “leave may be denied to employees in a position where the leave requested will cause substantial and grievous economic injury to Seacoast National Bank if family and medical leave is granted.”

The handbook went on to say that FMLA leave could only be approved once the employee was unable to perform her job and that intermittent leave could only be taken based on an employee’s serious health condition as certified by a doctor.

In other words, there was nothing in the handbook indicating that pregnant women could take FMLA leave for routine pregnancy problems that didn’t render them entirely unable to work. Nor was there a guarantee that qualified employees would get FMLA leave at all.

Wahl missed work for doctors’ appointments and pregnancy-related nausea and vomiting. Before she even delivered her baby, she was fired for excessive absences.

Wahl sued, alleging FMLA interference and retaliation.

It was a slam-dunk, with no trial required. The court noted that the bank seemed clueless about its obligations under the FMLA and had clearly interfered with Wahl’s rights when it fired her for taking time off that was covered by the FMLA. All that is left to do now is determine how much the bank owes Wahl for its willful ignorance. (Wahl v. Seacoast Banking Corporation, No. 09-81382, SD FL, 2011)

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