Does Pregnancy Qualify Automatically as a Serious Condition

Issue: One month before giving birth, a pregnant document control clerk seeks to start her maternity leave. She gives her manager a handwritten note indicating the proposed start date and that she intends to return to work six weeks after the birth. At the bottom of the note, the clerk writes, “John, is this all you need from me?” What should John do?

Answer: When in doubt, ask HR! John needs to review and follow company policy regarding maternity and disability leave procedures. Even if the clerk is not covered by a disability leave plan, medical documentation of her need for leave may be desirable.

Consider the FMLA
The Family and Medical Leave Act of 1993 gives eligible employees up to twelve weeks of unpaid leave because of the birth of a son or daughter and in order to care for the child. That would seem to cover the six weeks after the birth. But what about the month preceding the birth? Can leave be taken because of the pregnancy?

Unpaid leave is also available under the FMLA because of a serious health condition that makes the employee unable to perform job functions. Labor Department regulations are very broad when it comes to pregnancy—any period of incapacity due to pregnancy or for prenatal care is considered a qualifying serious health condition. Nevertheless, courts have ruled that pregnancy per se is not a serious health condition. They require evidence that the pregnancy and related conditions kept an employee from performing the functions of her job.

When to request medical certification
Of course, employers can accept that an employee needs leave without questioning it. But if they’re going to question the need for leave, they should do so at the time of the request.

Employers may require that leave due to an employee’s own serious health condition be supported by certification of a health care provider. Requests for medical certification must be written and timely—generally within two business days of an employee’s request for leave.

The Labor Department has developed an optional form for employees’ use in obtaining medical certification from health care providers (Form WH-380). It is available on the Department’s Web site at http://www2.dol.gov/dol/esa/public/regs/cfr/fmla/380wh.pdf. Another form containing the same basic information may be used, but no additional information may be required.

Cite: Atchley v. The Nordam Group, Inc, 10thCir, No. 96 CV 344C, decided June 4, 1999.

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