by Tammy Binford
Questions surrounding employer obligations under the Family and Medical Leave Act (FMLA) seem endless. Recently, questions on how to handle a pregnant employee wanting to go against doctor’s orders and when leave should be granted to an employee wanting to take care of a grandchild were put to attorneys. Here is what they said.
Employee, doctor at odds
What if a pregnant employee’s doctor tells her to take two weeks off work for bed rest? The employee doesn’t think that’s necessary and wants to return to work. The employer doesn’t have any paperwork stating that she must be off work. What should the employer do?
Karen McAndrew, a director at Dinse, Knapp & McAndrew, P.C. in Burlington, Vermont, reminds employers a lot depends on what kind of work the employee does, but she stresses that employers shouldn’t make assumptions that a pregnant employee should not be performing any physical work or should be banned from a broad category of jobs.
“However, if the employee is in a physically demanding job that you have reason to believe could pose a direct threat to her health or the health of her unborn baby, then you may reasonably conclude that she presently isn’t qualified for the job,” McAndrew says.
She adds that the U.S. Supreme Court has ruled that a regulation allowing denial of employment to a disabled employee when the job poses a direct threat to the safety of the employee or others is a permissible regulation under the Americans with Disabilities Act.
McAndrew says before making a decision, the employer would be wise to have the employee take a fitness-for-duty exam by the company’s physician or provide a note from her doctor stating she can safely do the job. “If she isn’t cleared to perform the specific job, you may reasonably require her to take leave,” she says.
Michael Petrie, of Jorden Burt LLP in Simsbury, Connecticut, points out that “the law doesn’t require you to overrule her and prohibit her from returning to work against her doctor’s orders.” But if an employer is concerned about a safety risk, precautions are permitted.
“For example, if you already have certified the employee for FMLA leave, you may be able to require a fitness-for-duty certification from her doctor,” Petrie says. “FMLA regulations mandate that employers notify employees of such a requirement in the notice of rights and responsibilities that accompanies FMLA requests. If you haven’t gotten to that part of the FMLA process, you still should consider whether the employee is able to safely perform the essential functions of her job.”
Leave to care for grandson
Another FMLA question relates to whether workers can take leave under the Act to care for a grandchild. An employer wonders if an employee requesting such leave should provide proof that she has “in loco parentis” status (i.e. she acts as a parent) before she’s given FMLA paperwork.
Under the FMLA, employees can take leave to care for a son or daughter with a serious health condition, not a grandchild. But Joanna Vilos, an attorney with Holland & Hart LLP in Cheyenne, Wyoming, reminds employers that “son or daughter” includes a child of someone standing in loco parentis, and individuals can be considered in loco parentis “when they financially support the child or are involved in the day-to-day responsibilities for his care.”
Vilos says the employer is entitled to ask for confirmation of the family relationship and the employee can be required to provide reasonable documentation of the relationship. “That could include documentation such as a tax return showing the grandson as a dependent,” she says. “It also could include a simple statement from the employee.”
Vilos says a statement from the employee should include the name of the child and that the employee provides him with financial or other support. “Despite the relatively low threshold of documentation needed to declare in loco parentis status, the employee still has to meet all the other FMLA requirements, such as eligibility, qualifying reasons for leave, and medical certification to use FMLA leave,” she says.
In the above article, Ms. McAndrew writes that“However, if the employee is in a physically demanding job that you have reason to believe could pose a direct threat to her health or the health of her unborn baby, then you may reasonably conclude that she presently isn’t qualified for the job,”
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, 499 U.S. 187, 111 S.Ct. 1196 (1991), a case involving a policy prohibiting women of child-bearing age from working in positions that would potentially expose them to lead in the battery manufacturing process, the Supreme Court ruled that the risk of harm to a pregnant employee or her fetus is not a legal basis for denying a job to a woman. From this ruling it would seem that the employer must make the potential dangers known to the pregnant employee, but the ultimate decision is up to that individual.