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Working during FMLA leave: Should we stop it?

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Q. We have an employee in her third week of maternity-related FMLA leave who comes to work to check her e-mails, make some work calls, etc. How should we handle this? Could there be liability issues because there’s no doctor’s release yet? — M.J., Phoenix

A.
You are correct to be concerned. I would not permit this employee to work unless and until a doctor releases her to do so. However, care must be given to make sure this employee is not treated differently than nonpregnant employees with similarly disabling conditions. Pregnant employees must be permitted to work as long as they are able to perform their jobs.

If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the birth. Thus, if her doctor, in writing, permits her to come into the office to check e-mails, etc., you risk liability by not permitting her to do so.
 

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