Even if pregnant employees not FMLA-eligible, they may still qualify for leave

Q         A pregnant employee has applied for Family and Medical Leave Act (FMLA) leave but has only been employed with our company for about five months, so she doesn’t meet the one-year, 1,250-hours-worked criteria. Are we required to provide her 12 weeks of unpaid time off and job security? Also, since she doesn't qualify for FMLA leave, what paperwork should we have her fill out?

A   If the employee doesn’t satisfy the FMLA’s eligibility requirements, you aren’t obligated to provide FMLA leave. If the need for leave rises to the level of a disability under the Americans with Disabilities Act (ADA), however, (i.e., pregnancy-related complications), some leave may qualify as a reasonable accommodation.

If this is the case, you may ask her to provide medical documentation of her need for leave. There’s no bright-line rule, but the length of leave needed may affect the determination of whether it would be a reasonable ADA accommodation (i.e., indefinite leave isn’t a reasonable accommodation, but intermittent leave to attend appointments for pregnancy-related complications might be).

The FMLA and ADA aside, if you offer or have allowed leave to employees for other medical and nonmedical reasons, you would need to offer the same to this employee for purposes of pregnancy under the Pregnancy Discrimination Act (PDA) and Title VII of the Civil Rights Act of 1964.

Martin J. Regimbal, a Shareholder of The Kullman Firm in Columbus, Mississippi, may be reached at mjr@kullmanlaw.com.