Invoke FMLA when employee can’t do job

Sometimes a pregnant employee develops problems that amount to a temporary disability. Then she may need accommodations.

But if those accommodations don’t allow the employee to perform the essential functions of the job, you can place the employee on FMLA leave. If she can’t return to work when her FMLA entitlement is up, you may terminate the employee without violating the FMLA.

Recent case: Rebecca, who was pregnant, worked with violent students who sometimes required being restrained. When she neared the midpoint of her pregnancy, Rebecca’s doctor restricted her activities, ordering that she not be required to restrain students. Her request was accommodated.

But then her doctor added another restriction: no student contact at all. This time, the employer said no accommodation was possible and placed her on FMLA leave. When Rebecca’s 12 weeks were up and she wasn’t ready to return, she was terminated.

Rebecca sued, alleging she should not have been placed on FMLA leave, but should have been accommodated with another job. It would have allowed her to work without student contact, but someone was already doing the job.

The court rejected her argument. It said that moving her into someone else’s job wasn’t required and that being forced to take FMLA leave was a legitimate employer decision under the circumstances. (Turner v. Eastconn, et al., No. 14-68, 2nd Cir., 2015)

Final note: If a pregnant employee’s condition amounts to a permanent or long-term disability, you may be obligated to provide some additional leave as a reasonable accommodation. Check with your attorney if you think this may be an issue.