An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
Further, under the Family and Medical Leave Act FMLA of , a new parent including foster and adoptive parents may be eligible for 12 weeks of leave unpaid or paid if the employee has earned or accrued it that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.
Department of Labor. Nursing mothers may also have the right to express milk in the workplace under a provision of the Fair Labor Standards Act enforced by the U.
Department of Labor's Wage and Hour Division. Federal employees have 45 days to contact an EEO Counselor. If Henry can establish that he would have made other arrangements for the care of his mother if he had known that the time would be counted against his FMLA entitlement, the two weeks his employer failed to appropriately designate may not count against his FMLA entitlement.
When the need for leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment, an employee must give at least 30 days notice. The regulations clarify that it should be practicable for an employee to provide notice of the need for leave that is foreseeable either the same day or the next business day.
In all cases, however, the determination of when an employee could practicably provide notice must account for the individual facts and circumstances. When Mandy goes to her Monday physical therapy appointment for her serious health condition, she finds out that the appointment she had previously scheduled for Thursday has been changed to Friday.
Upon her return to work after the Monday appointment, Mandy informs her employer that she will no longer need leave on Thursday for physical therapy, but will need leave on Friday instead. Mandy has provided notice of her need for foreseeable leave as soon as practicable.
What information must an employee give when providing notice of the need for FMLA leave? Additionally, the regulations require an employee seeking leave due to a FMLA- qualifying reason for which the employer has previously provided FMLA-protected leave either to reference specifically the qualifying reason for leave or the need for FMLA leave.
In all cases, an employer should inquire further if it is necessary to have more information about whether FMLA leave is being sought by an employee. Sam has a medical certification on file with his employer for his chronic serious health condition, migraine headaches. He is unable to report to work at the start of his shift due to a migraine and needs to take unforeseeable FMLA leave.
Sam has provided his employer with appropriate notice. Do I have to give my employer my medical records for leave due to a serious health condition? An employee is not required to give the employer his or her medical records. The employer, however, does have a statutory right to request that an employee provide medical certification containing sufficient medical facts to establish that a serious health condition exists.
What if I do not want my employer to know about my medical condition? If an employer requests it, an employee is required to provide a complete and sufficient medical certification in order to take FMLA-protected leave due to a serious health condition. How soon after I request leave does my employer have to request a medical certification of a serious health condition? Under the regulations, an employer should request medical certification, in most cases, at the time an employee gives notice of the need for leave or within five business days.
If the leave is unforeseen, the employer should request medical certification within five days after the leave begins. An employer may request certification at a later date if it has reason to question the appropriateness or duration of the leave. What happens if my employer says my medical certification is incomplete? An employer must advise the employee if it finds the certification is incomplete and allow the employee a reasonable opportunity to cure the deficiency. The regulations require that the employer state in writing what additional information is necessary to make the certification complete and sufficient.
May my employer contact my health care provider about my serious health condition? Employers may not ask the health care provider for additional information beyond that contained on the medical certification form. An employer may not require an employee to sign a release or waiver as part of the medical certification process. If an employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee's request for FMLA leave may be denied.
How often may my employer ask for medical certifications for an on-going serious health condition? The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days.
For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. Additionally, the regulations codify a Wage and Hour opinion letter that stated that employers may request a new medical certification each leave year for medical conditions that last longer than one year.
Such new medical certifications are subject to second and third opinions. Janie takes six weeks of FMLA leave for a cancer operation and treatment and gives her employer a medical certification that states that she will be absent for six weeks.
If the business has 15 or more employees, it is covered by state and federal pregnancy and disability discrimination laws, which require non-discriminatory treatment of pregnant employees and reasonable accommodation for employees with disabilities. Disability laws can come into play for a pregnant employee if the pregnancy becomes complicated and results in something that can turn into a disability, such as gestational diabetes.
From a practical standpoint, avoiding liability for pregnancy discrimination involves ensuring that employees are not adversely treated due to pregnancy, making reasonable accommodation for pregnant employees, and extending the same benefits and treatment toward them as the company extends to other employees who have medical conditions.
Pregnant employees do not need to be treated any better than other employees with medical conditions, but need to be treated at least as favorably. If an employee claims that she cannot do certain duties due to being pregnant, the company has the right to require her to medically document such claims. Have the employee obtain a statement from her doctor showing clearly which duties of her job she can perform, which duties she cannot perform, and what accommodations might be necessary to enable the employee to continue working.
Documentation requirements like this should be applied consistently and fairly to anyone who asserts a medical difficulty in doing their job functions. Reasonable accommodation is something that the company can do, without undue hardship to the business, that allows the employee to work and manage any periods of leave.
Among other things, reasonable accommodation could include things such as redesigning job duties temporarily, furnishing health or safety aids, and extending a reasonable amount of maternity leave. Regarding job duties for pregnant employees, it is important to act on the basis of sound medical information, rather than company officials' own ideas about what might be too risky for a pregnant woman to do.
In UAW, et al, v. Johnson Controls , U.
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