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Pregnancy & Maternity Leave Rights
The Employee's Voice And Advocate

Citrus County, FL Discrimination Lawyers Serving Central Florida Employees

Having fought for the rights of pregnant employees for more than two decades, our Citrus County, Florida discrimination attorneys know that pregnant employees may be unable to work for temporary periods because of pregnancy, childbirth, or related medical conditions. In far too many cases, our Inverness, Florida discrimination lawyers have learned, employers refuse to take steps to make it easier for pregnant employees to take leave and having their jobs waiting for them when they return from leave. Based on Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida discrimination attorneys are dedicated to vindicating the rights of pregnant employees who have been denied pregnancy-related leave or retaliated against for taking pregnancy-related leave. In fighting for pregnant employees against abusive employment practices, our Inverness, Florida discrimination attorneys are committed to ensuring that pregnant employees receive the leave and job security they deserve.

Family Medical Leave Act (FMLA)

The Pregnancy Discrimination Act of 1978 (PDA) protects women from discrimination on the basis of pregnancy, childbirth, or related medical conditions. In passing the PDA, as observed by the U.S. Tenth Circuit Court of Appeals in E.E.O.C. v. Ackerman Hood & McQueen, Inc., 956 F.2d 944 (10th Cir. 1992), Congress intended “to provide relief for working women and to end discrimination against pregnant workers.” However, as explained by the U.S. Seventh Circuit Court of Appeals in Marshall v. American Hosp. Ass’n, 157 F.3d 520 (7th Cir. 1998), the “PDA does not require employers to offer maternity leave or other special assistance to pregnant employees.” Nor does the PDA, as the U.S. Fifth Circuit Court of Appeals pointed out in Stout v. Baxter Healthcare Corp., 282 F.3d 856 (5th Cir. 2002), “protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or complications of pregnancy, unless the absences of non-pregnant employees are overlooked.”

Because the PDA provides pregnant workers with inadequate job security when they miss time from work due to pregnancy, childbirth, or related medical conditions, the U.S. Congress passed the Family Medical Leave Act (FMLA) in 1993. In enacting the FMLA, as observed by the U.S. Sixth Circuit Court of Appeals in Cavin v. Honda of America, Inc., 346 F.3d 713 (6th Cir. 2003), Congress found “there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” The FMLA, the Cavin court noted, “accommodates the important societal interest in assisting families by establishing minimum labor standards for leave.”

FMLA Pregnancy & Maternity Leave Rights

The FMLA provides protections for pregnant employees far beyond that afforded by the PDA. Under the FMLA, pregnant workers are entitled to take leave because of an inability to work due to pregnancy or for prenatal care, for the birth of a child and to care for the new born child, and because of their own serious health condition following the birth of a child. When pregnant employees take leave under the FMLA, the FMLA also entitles them to have their jobs waiting for them when they return from leave. Thus, the FMLA, unlike the PDA, provides pregnant employees with job security by requiring employees to restore them to their job when they miss work due to pregnancy, childbirth, or related medical conditions.

Pregnant Employee’s FMLA Rights

Under the FMLA, an employee eligible for FMLA leave is entitled to twelve workweeks of leave, without pay, over any period of twelve months for any one of the following reasons: (1) the birth of a child of the employee and to care for the newborn child; (2) the placement of a son or daughter with the employee for adoption or foster care; (3) in order to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; or (4) because of a serious health condition that makes the employee unable to perform the functions of his or her job. When these qualifying circumstances exist, an employee has a FMLA-qualifying reason for leave and is entitled to take FMLA-protected leave.

Under the FMLA, as the U.S. District Court for the District of Columbia observed in Pendarvis v. Xerox Corp., 3 F.Supp.2d 53 (D. D.C. 1998), “pregnancy is recognized as a special case.” Under the FMLA, a pregnant employee is entitled to FMLA leave for the following reasons: (1) for the birth of her child and to care for the newborn child; (2) when she is unable to work due to pregnancy or for prenatal care; and (3) for her own serious health condition following the birth of a child. In guaranteeing pregnant employees the right to leave under such circumstances, the FMLA, just like the PDA, covers not only pregnancy, but also childbirth and related medical conditions.

The FMLA also allows pregnant employees to take FMLA leave intermittently under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. The FMLA regulations provide that a pregnant employee is entitled to take FMLA leave on an intermittent basis when she is unable to work due to pregnancy or prenatal examinations. Thus, the FMLA also affords a pregnant worker the right to job-protected time off from work for short-periods when she is unable to work due to pregnancy.

Pregnant Employee’s Right To Job Protection

At the end of FMLA leave, a pregnant employee has the right to be restored by the employer to the position she held when leave commenced or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. In providing pregnant employees with the right to reinstatement at the end of FMLA leave, the FMLA guarantees pregnant workers the right to take up to twelve weeks of unpaid, job protected leave. When an employer fails to reinstate a pregnant employee at the end of her FMLA leave, she will in most cases have meritorious claims for interference and retaliation against the employer under the FMLA.

However, as observed by the U.S. District Court for the Southern District of New York in Reilly v. Revlon, Inc., 620 F.Supp.2d 524 (S.D. N.Y. 2009), “the right to reinstatement is not [ ] absolute” because “if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA.” “And once the twelve weeks of guaranteed leave are exhausted,” the Reilly court pointed out, “if the employee does not return to work—for whatever reason—the employer can replace the employee, so long as the employer is not doing so to punish the employee for exercising FMLA rights.”

Pregnant Employee’s Eligibility For FMLA Leave

A pregnant employee seeking benefits under the FMLA must establish that she is eligible for FMLA leave. As explained by the U.S. District Court for the District of Columbia in Briscoe v. Costco Wholesale Corp., 61 F.Supp.3d 78 (D. D.C. 2014), in order to be eligible for leave under the FMLA, an employee must (1) “have been employed by the employer for at least 12 months,” and (2) “have been employed for at least 1,250 hours of service during the twelve-month period immediately preceding the commencement of the leave.” “The determination of whether an employee meets the hours of service requirement,” as the Briscoe court observed, “is made at the date the FMLA leave is to start.” In order for a pregnant employee to be eligible for leave under the FMLA, she must also show that she was employed at a worksite where at least 50 employees are employed by the employer, or that her employer employed 50 employees within 75 miles of that worksite.

FMLA Interference & Retaliation Claims

As explained by the U.S. Seventh Circuit Court of Appeals in Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir. 2006), the FMLA “makes it unlawful for an employer to interfere with an employee’s attempt to exercise FMLA rights.” The FMLA, the Burnett court pointed out, “also forbids an employer from retaliating against an employee who exercises FMLA rights.” Thus, courts have determined that the FMLA creates two types of claims: interference claims, in which an employee claims that her employer denied or interfered with her rights under the FMLA; and retaliation claims, in which an employee claims that she was retaliated against for exercising or attempting to exercise FMLA rights.

“The interference theory,” as the U.S. Sixth Circuit Court of Appeals in Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274 (6th Cir. 2012) explained, “has its roots in the FMLA’s creation of substantive rights, and if an employer interferes with the FMLA-created right to medical leave or reinstatement following leave, a violation has occurred regardless of the intent of the employer.” By contrast, the Seeger court noted, “the central issue raised by the retaliation theory . . . is whether the employer took the adverse action because” an employee exercised or attempted to exercise FMLA rights or “for a legitimate, [non-retaliatory] reason.” In other words, the Sixth Circuit observed in Roman v. Michigan Dep’t of Human Servs., 668 F.3d 826 (6th Cir. 2012), in interference claims “employers burden or outright deny substantive [FMLA] rights to which their employees are entitled,” whereas in retaliation claims “employers initiate adverse employment actions against employees for exercising their FMLA right to take leave.” “An employer’s motive is relevant in a retaliation claim,” the Sixth Circuit pointed out in Russell v. CSK Auto Corp., 739 Fed.Appx. 785 (6th Cir. 2018), “because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.”

Interference With Pregnant Employee’s FMLA Rights

The FMLA, as the U.S. District Court for the Eastern District of Kentucky in Collins v. Dan Cummins Chevrolet-Buick, Inc., 2015 WL 4603108 (E.D. Ky. July 29, 2015) observed, “is designed to protect employees.” Thus, the FMLA, as explained by the U.S. District Court for the Eastern District of Michigan in Anderson v. Detroit Transp. Corp., 435 F.Supp.2d 783 (E.D. Mich. 2020), “makes it illegal for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise FMLA rights.”

In an FMLA interference claim, as the U.S. Eleventh Circuit Court of Appeals determined in Evans v. Books-A-Million, 762 F.3d 1288 (11th Cir. 2014), an employee need only show that “she was denied a benefit to which she was entitled under the FMLA, and that she has been prejudiced by the violation in some way.” When asserting an FMLA interference claim, as observed by the Eleventh Circuit in Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286 (11th Cir. 2006), an employee is not required to prove that the employer intended to deny her an FMLA benefit to which she was entitled because an “employer’s motives are irrelevant in the context of an interference claim.” In other words, if an employer denies an employee a FMLA benefit to which she is entitled and the employee is harmed by the denial of the FMLA benefit in some way, the employer has unlawfully interfered with the employee’s FMLA rights—even if the employer did not intend to deny her the FMLA benefit.

In Shelton v. Price Waterhouse Coopers, LLP, 2014 WL 2581348 (S.D. Fla. May 2, 2014), the U.S. District Court for the Southern District of Florida observed that an employer’s interference with an employee’s FMLA rights includes “refusing to authorize FMLA leave, discouraging the use of FMLA leave, manipulation to avoid responsibilities under the FMLA, and changing the essential function of the job in order to preclude the taking of leave.” As pointed out by the U.S. District Court for the Eastern District of Michigan in Edwards v. ALDI, Inc., 310 F.Supp.3d 803 (E.D. Mich. 2018), an employer’s interference with an employee’s FMLA rights also includes failing “to restore the employee to the same or an equivalent position upon her return from FMLA leave.” Moreover, as determined by the U.S. Sixth Circuit Court of Appeals in Wysong v. Dow Chemical Co., 503 F.3d 441 (6th Cir. 2007), “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions.” “If an employer takes an employment action based, in whole or in part,” the Wysong court explained, “on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he is entitled.”

To establish a claim for interference under the FMLA, as determined by the Sixth Circuit in Donald v. Sybra, Inc., 667 F.3d 757 (6th Cir. 2012), an employee has the burden of proving that: (1) “she was an eligible employee” under the FMLA; (2) the employer was an “employer as defined by the FMLA”; (3) she was “entitled to leave under the FMLA”; (4) she “gave the employer notice of her intention to take leave”; and (5) the employer “denied” her “FMLA benefits to which she was entitled.” “A benefit is denied,” the Sixth Circuit explained in Tennial v. United Parcel Serv., Inc., 840 F.3d 292 (6th Cir. 2016), “if an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave.”

Retaliation Against Pregnant Employee For Using FMLA

The FMLA, as the U.S. Sixth Circuit Court of Appeals observed in Marshall v. The Rawlings Co., LLC, 854 F.3d 368 (6th Cir. 2017), “affords employees protection in the event they suffer retaliation or discrimination for exercising their rights under the FMLA.” Under the FMLA, the Marshall court explained, “an employer is prohibited from [retaliating] against employees . . . who have used FMLA leave, nor can they use the taking of FMLA leave as a negative factor in employment actions.” This means that when a pregnant employee takes pregnancy-related leave or maternity leave under the FMLA, an employer cannot use her FMLA leave as a negative factor in employment decisions. The FMLA’s prohibition against retaliation, as pointed out by the Sixth Circuit in DeBoer v. Musashi Auto Parts, Inc., 124 Fed.Appx. 387 (6th Cir. 2005), also protects employees from “retaliatory discharge for taking leave.” This means that an employer is forbidden from firing a pregnant employee because she took pregnancy-related leave or maternity leave under the FMLA. As the U.S. Eleventh Circuit Court of Appeals in Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d 1199 (11th Cir. 2001) explained, successful FMLA retaliation claims, unlike FMLA interference claims, must show that an employer acted with “impermissible retaliatory or discriminatory animus.” This means that to prevail on a FMLA retaliation claim, an employee must prove that the employer made the employment decision because he or she exercised or attempted to exercise FMLA rights.

In order to establish a prima facie FMLA retaliation claim, as determined by the U.S. Eighth Circuit Court of Appeals in Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008), an employee must demonstrate that: (1) “she exercised rights” afforded by the FMLA; (2) “she suffered an adverse employment action”; and (3) “there was a causal connection between her exercise of [FMLA] rights and the adverse employment action.” Once an employee establishes a prima facie case of retaliation, the burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. If the employer produces evidence of a legitimate, non-retaliatory reason, the burden then shifts back to the employee to come forward with evidence that the employer’s articulated reason for the adverse employment action was a pretext for retaliation. The employee may prove pretext by showing that a retaliatory reason more likely motivated the employer or by showing that the employer’s articulated reason is unworthy of belief.

Serious Health Condition Under FMLA

The FMLA entitles an employee to take twelve weeks off from work, without pay, because of the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s job, or to care for a spouse, son, daughter, or parent who has a serious health condition. The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care in a hospital, hospice, or residential medical care facility; or (2) continuing treatment by a health care provider.

Under the FMLA regulations, a serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

  • *A period of incapacity of more than three consecutive, full calendar days, and involves either (a) treatment by a health care provider at least twice within thirty days of the first day of incapacity, unless extenuating circumstances exist, or (b) treatment by a health care provider at least once that results in a regimen of continuing treatment under the supervision of a health care provider. The requirement of treatment by a health care provider means an in-person visit to a health care provider. Moreover, the first (or only) in-person visit must take place within seven days of the first day of incapacity;
  • *Any period of incapacity due to pregnancy, or for prenatal care;
  • *Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which (a) requires at least two visits a year for treatment by a health care provider, (b) continues over an extended period of time, and (c) may cause episodic rather than a continuing period of incapacity; or
  • *A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective.

Under the FMLA regulations, the term “incapacity” means an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment for the serious health condition, and recovery from the serious health condition. The FMLA regulations also provide that an employee is unable to perform the functions of the employee’s job when a health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s job. The FMLA regulations further provide that an employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

Pregnancy As Serious Health Condition Under FMLA

As observed by the U.S. District Court for the Eastern District of Michigan in Whitaker v. Bosch Braking Sys. Div. Of Robert Bosch Corp., 180 F.Supp.2d 922 (E.D. Mich. 2001), pregnancy, by itself, does not constitute a serious health condition within the meaning of the FMLA. However, the Whitaker court explained, the FMLA treats pregnancy “differently from other conditions because in most cases, the employee must establish incapacity for more than three consecutive calendar days, and either treatment two or more times by a healthcare provider or at least one treatment by a healthcare provider resulting in a regimen of treatment under the supervision of the healthcare provider, while a pregnant employee need not establish those conditions.”

Under the FMLA, pregnant employees are entitled to leave when they are unable to work due to pregnancy or for prenatal care, even if they do not receive treatment from a healthcare provider during the absence from work, and even if the absence from work does not last more than three consecutive calendar days. Thus, although pregnant employees must still show an inability to work due to pregnancy in order to establish a serious health condition under the FMLA, pregnant employees do not have to demonstrate they were under doctor’s care while absent from work or the inability to work lasted for more than three consecutive calendar days to prove a serious health condition. Under the FMLA therefore, as observed by the U.S. District Court for the District of Columbia in Pendarvis v. Xerox Corp., 3 F.Supp.2d 53 (D. D.C. 1998), “pregnancy is recognized as a special case that is treated differently from other serious health conditions.”

The FMLA regulations identify severe morning sickness as an example where a pregnant employee is entitled to FMLA leave because of an inability to work due to pregnancy. In addition to severe morning sickness, there are a broad array of circumstances where a pregnant worker may be unable to work due to pregnancy, including: pregnancy-related symptoms, such as back pain, spotting, cramping, pelvic inflammation, and late-term severe pain; pregnancy-related disorders, such as preclampsia (pregnancy-induced high blood pressure), edema, and gestational diabetes; pregnancy-related complications requiring bed rest; miscarriage, risk of miscarriage, and susceptibility to miscarriage; and the after-affects of delivery. When any of these circumstances render a pregnant employee unable to work, the pregnant employee has a FMLA-qualifying reason for leave and is entitled to take FMLA-protected leave.

Notice Of Need For Pregnancy Or Maternity Leave

To invoke rights under the FMLA, including the right to pregnancy-related leave and maternity leave, employees must provide adequate notice about their need to take leave. The notice requirement, as the U.S. Seventh Circuit Court of Appeals in Preddie v. Bartholmew Consol. Sch. Corp., 799 F.3d 806 (7th Cir. 2015) observed, is “not onerous.” Instead, as explained by the U.S. Eighth Circuit Court of Appeals in Rask v. Freenius Med. Care N. Am., 509 F.3d 466 (8th Cir. 2007), the FMLA makes “it very easy [for an employee] to give notice of her intent to take leave.” Courts have determined that there are three general components of adequate FMLA notice: content; timing; and compliance with employer policy. An employee’s failure to satisfy any of these three components can result in denial of FMLA leave and protection.

With respect to content, as the Seventh Circuit observed in Phillips v. Quebecor World RAI, Inc., 450 F.3d 308 (7th Cir. 2006), “an employee is not required to expressly assert rights under the FMLA or even mention the FMLA, but only state that leave is needed.” Indeed, as pointed out by the Seventh Circuit in Stoops v. One Call Commc’ns, 141 F.3d 309 (7th Cir. 1998), an employee can be “completely ignorant of the benefits conferred by the [FMLA].” “The employee’s notice obligation,” as determined by the Seventh Circuit in Burnett v. LFW, Inc., 472 F.3d 471 (7th Cir. 2006), “is satisfied so long as he provides information sufficient to show that he likely has an FMLA-qualifying condition.” In other words, as the Seventh Circuit explained in Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950 (7th Cir. 2004), “the employee’s duty is merely to place the employer on notice of a probable basis for FMLA leave.”

An employee’s obligation with respect to the timing of notice depends on whether the need for leave is foreseeable or unforeseeable. Under the FMLA regulations, if an employee’s need for leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member, the employee must give the employer at least thirty days advance notice of the need for leave. Maternity leave is generally governed by the thirty-day notice requirement. However, the FMLA regulations also provide that if thirty days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, then notice must be given “as soon as practicable” under the facts and circumstances of the case.

Under the FMLA regulations, if an employee’s need for leave is unforeseeable, the thirty-day notice requirement does not apply. Instead, an employee whose need for leave is unforeseeable must provide notice to the employer “as soon as practicable” under the facts and circumstances of the case. During the course of a woman’s pregnancy, the need for leave will sometimes be unforeseeable. For example, a pregnant worker may experience severe morning sickness or the day of childbirth may be unexpected. Under such circumstances, a pregnant employee must give the employer notice of the need for leave as soon as practicable.

Under the FMLA regulations, an employee’s notice obligations generally include compliance with an employer’s internal notification procedures for requesting leave. Regardless of whether an employee’s need for leave is foreseeable or unforeseeable, an employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer’s usual and customary notice and procedural requirements for requesting leave may require written notice or that notice be given to a specific individual. Under such circumstances, an employee would be required by the FMLA to provide written notice or notice to the specified individual.

Under the FMLA regulations, an employer is allowed to deny or delay FMLA leave when an employee does not comply with the employer’s usual and customary notice and procedural requirements for requesting leave, even if the employee is actually entitled to FMLA leave. However, an employee’s right to FMLA-protected leave cannot be denied or delayed based solely on non-compliance with an employer’s usual and customary notice and procedural requirements for requesting leave when the employer’s policy does not comport with the FMLA’s standards for invoking leave. When an employer’s policy is inconsistent with the FMLA’s standards for invoking leave, the employee’s notice obligations are governed exclusively by the FMLA.

Requesting Maternity Leave Before FMLA Eligibility

In some cases, pregnant employees request FMLA maternity leave before they have worked for their employer for at least twelve months, and, thus, are not eligible for FMLA leave at the time of the request. Under such circumstances, employers argue that a pregnant employee cannot recover under either an interference or retaliation theory because she was not eligible for FMLA leave at the time of her request for maternity leave. In other words, employers contend that pregnant employees must be eligible for FMLA leave at the time of their request for maternity leave in order to be protected from interference with their FMLA rights and retaliation for exercising their FMLA rights. This employer argument was squarely rejected by the U.S. Eleventh Circuit Court of Appeals in Peread v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269 (11th Cir. 2012).

In that case, the employee informed her employer in June 2009 that she was pregnant and would be taking FMLA leave after the birth of her child on or about November 30, 2009. At the time she requested FMLA maternity leave, the employee had not worked for the her employer for at least twelve months, and, thus, was not eligible for FMLA leave. However, because the requested maternity leave would begin after she had approximately fourteen months of employment, the employee would be eligible for maternity leave when her maternity leave commenced. The employee alleged that after disclosing her pregnancy and intent to take maternity leave in the future, her employer began harassing her, causing stress and other complications in her pregnancy. Ultimately, the employer fired her in September 2009.

The employee brought an interference and retaliation claim against her employer under the FMLA. She alleged that, by terminating her, the employer interfered with her rights under the FMLA and retaliated against her for requesting FMLA maternity leave. Adopting the employer’s interpretation of the FMLA, the trial court ruled that the employee was not entitled to any protection under the FMLA because she was not eligible for FMLA leave at the time she requested FMLA maternity leave and dismissed the employee’s FMLA claims. In refusing to protect employees from interference and retaliation after they declare an intention to take FMLA leave in the future, the trial court endorsed an interpretation of the FMLA which the U.S. District Court for the Middle District of Alabama in Walker v. Elmore County Bd. of Educ., 223 F.Supp.2d 1255 (M.D. Ala. 2002) characterized as “absurd.” The Eleventh Circuit reversed the trial court’s decision and reinstated the employee’s FMLA claims.

In ruling that the employee could bring FMLA claims for interference and retaliation even though she was not eligible for FMLA leave at the time she requested FMLA maternity leave, the Eleventh Circuit reasoned that if employees are not protected from interference and retaliation after declaring an intention to take FMLA leave in the future because they were not eligible for FMLA leave at the time of the request, “a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible.” Under such circumstances, employers would have a “significant exemption from liability,” and employees would be exposed to “retaliation or interference, for which they have no remedy.” Thus, the Eleventh Circuit emphatically rejected the “absurd” interpretation of the FMLA desired by employers and endorsed by the trial court.

FMLA Leave Due To Morning Sickness

Under the FMLA, pregnant employees are entitled to FMLA when they are unable to work due to severe morning sickness. The decision by the U.S. District Court for the District of Columbia in Pendarvis v. Xerox Corp., 3 F.Supp.2d 53 (D. D.C. 1998) demonstrates that severe morning sickness may qualify as a serious health condition within the meaning of the FMLA and, thus, entitling a pregnant worker to FMLA leave. In that case, the employee claimed that her FMLA rights were violated when she was fired for alleged unexcused absences. The employer’s charge of unexcused absences included time the employee missed from work due to morning sickness. The employee maintained that the time she missed from work due to morning sickness constituted FMLA-qualifying leave and, thus, could not be used as a basis to terminate her employment. The employer contended that the time the employee missed from work due to morning sickness was not FMLA-protected leave because she failed to present any evidence that her morning sickness rendered her unable to work for more than three consecutive calendar days or any evidence from a health care provider that she suffered from severe morning sickness.

In rejecting the employer’s argument and ruling that the employee was entitled to proceed to a jury trial on the issue of whether her FMLA rights were violated, the trial court explained that “throughout the FMLA regulations, pregnancy is recognized as a special case that is treated differently from other serious health conditions.” Under the FMLA, the trial court pointed out, “any period of incapacity due to pregnancy or prenatal care constitutes a serious health condition entitling an employee to FMLA leave . . . and certain absences attributable to incapacity—specifically including those by a pregnant employee unable to report to work because of severe morning sickness—qualify for FMLA leave even though the employee does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three days.” Thus, the trial court concluded that the employee was not required to establish that her morning sickness prevented her from working for more than three consecutive calendar days or that she received treatment from a health care provider for her morning sickness. Instead, the employee was entitled to FMLA leave when she was unable to work for any period of time due to severe morning sickness.

Fired After Requesting Pregnancy Or Maternity Leave

In some cases, pregnant employees are terminated after they request pregnancy-related leave or maternity leave under the FMLA but before they actually take FMLA leave. When a pregnant worker requests pregnancy-related leave or maternity leave pursuant to the FMLA, she has exercised FMLA rights. Because the pregnant employee has exercised FMLA rights, an employer is prohibited from interfering with her FMLA rights or retaliating against her because she exercised FMLA rights. Thus, a pregnant employee who requests pregnancy-related leave or maternity leave under the FMLA does not have to actually commence leave under the FMLA in order to be protected from interference or retaliation. As the U.S. Sixth Circuit Court of Appeals explained in Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309 (6th Cir. 2001), the “right to actually take [FMLA] leave . . . includes the right to declare an intention to take such leave in the future.” Indeed, as the determined by the U.S. Third Circuit Court of Appeals in Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009), “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability by firing the employee before the leave begins.”

Because the FMLA guarantees a pregnant worker the right to take leave when she is unable to work due to pregnancy or prenatal care, for the birth of her child and to care for the newborn child, and for her own serious health condition following the birth of a child, a pregnant employee who is fired after requesting pregnancy-related leave or maternity leave under the FMLA will in most cases have a meritorious FMLA interference claim against the employer. In denying a pregnant employee the right to take FMLA-qualifying leave and preemptively depriving her of the right to reinstatement upon her return from FMLA-qualifying leave by firing her before FMLA-qualifying leave even begins, the employer has denied the pregnant employee FMLA benefits to which she was entitled. Because the FMLA also prohibits employers from punishing employees who exercise their FMLA rights, a pregnant worker who is terminated after requesting pregnancy-related leave or maternity leave under the FMLA will in most cases have a meritorious FMLA retaliation claim against the employer. In terminating a pregnant employee directly on the heels of a request for FMLA-qualifying leave and preemptively depriving her of the right to reinstatement upon her return from FMLA-qualifying leave by firing her before FMLA-qualifying leave even begins, the suspicious timing of the employer’s termination decision is compelling evidence that the pregnant employee was fired in retaliation for exercising her FMLA rights.

The decision by the U.S. District Court for the Eastern District of Tennessee in Payne v. Goodman Manufacturing Co., L.P., 726 F.Supp.2d 891 (E.D. Tenn. 2010) demonstrates that in most cases a pregnant employee’s FMLA rights are violated when she is fired after requesting pregnancy-related leave or maternity leave pursuant to the FMLA. In that case, the employee informed her supervisor in December 2007 that she was was pregnant. In February 2008, the employee told the company’s benefits administrator that she needed information regarding maternity leave. On March 26, 2008, the employee met with the benefits administrator and was given maternity leave paperwork, which was to be returned no later than April 10, 2008. On April 9, 2008, the employee’s doctor returned the maternity leave paperwork to the employer. One week later, the employee informed her supervisor of her need for FMLA maternity leave. On May 1, 2008, about two weeks after she requested FMLA maternity leave, the employee was fired. The employee was informed that she was terminated as part of a reduction in force which caused her position to “be cut.”

The employee brought an interference claim and a retaliation claim against her employer under the FMLA. She claimed that, by firing her after she requested FMLA maternity leave, the employer interfered with her rights under the FMLA and retaliated against her for exercising her FMLA rights. The employer filed a motion with the trial court seeking dismissal of the employee’s FMLA claims. The trial court denied the employer’s motion for dismissal and ruled that the employee was entitled to proceed to a jury trial on her FMLA claims.

In denying the employee’s motion for dismissal, the trial court focused on the timing between the employee’s request for FMLA maternity leave and the employee’s termination. In firing the employee “a few weeks after she informed her supervisor of her need for FMLA leave,” the trial court found that the close temporal proximity between the two events “supports a finding that [the employee’s] request for FMLA leave played a role in terminating” her employment. The trial court also pointed out that although the employee was allegedly terminated as part of a reduction in force which caused her position to “be cut,” there was evidence that the employee was replaced after her termination. Taking this evidence cumulatively, the trial court concluded, a reasonable jury could find that the employer’s “alleged reduction in force has no basis in fact, and thus, was merely a pretext” for firing the employee because she exercised FMLA rights.

Fired While On Pregnancy Or Maternity Leave

In some cases, pregnant employees are terminated while on FMLA pregnancy-related leave or FMLA maternity leave. Because the FMLA requires an employer to restore an employee to the same or an equivalent position at the end of FMLA leave, a pregnant worker who is fired while on FMLA pregnancy-related leave or FMLA maternity leave will in most cases have meritorious FMLA interference and retaliation claims against the employer. In denying a pregnant employee her right to be restored to the same or an equivalent position at the end of FMLA leave, the employer has denied the pregnant employee FMLA benefits to which she was entitled. In terminating a pregnant worker while she is on FMLA-protected leave, the suspicious timing of the employer’s termination is compelling evidence that the pregnant employee was fired in retaliation for exercising her FMLA rights.

The decision by the U.S. District Court for the Eastern District of North Carolina in Elliott v. Rollins, 2013 WL 5460193 (E.D. N.C. Sept. 13, 2013) demonstrates that in most cases a pregnant employee’s FMLA rights are violated when she is fired while on FMLA pregnancy-related leave or FMLA maternity leave. In that case, the employee took FMLA leave in September 2010 due to pregnancy-related medical conditions. In October 2010, while on FMLA pregnancy-related leave, the employee suffered a miscarriage and underwent surgery on October 15, 2010. Following her surgery, the employee submitted a letter from her doctor stating that she was able to return to work without restrictions on November 8, 2010. On November 1, 2010, the employer provided the employee with a letter stating that her employment was terminated. The employee’s termination letter did not provide a reason for her termination. The employee brought an interference claim and a retaliation claim against her employer under the FMLA. She contended that, by firing her while she was on FMLA pregnancy-related leave, the employer interfered with her rights under the FMLA and retaliated against her for exercising her FMLA rights.

In denying the employer’s motion for dismissal of the employee’s FMLA claims, the trial court determined that the employee had presented sufficient evidence to establish that her FMLA rights were violated to proceed to a jury trial. In firing the employee while she was on FMLA pregnancy-related leave, the trial court observed, the employer interfered with her FMLA rights by denying her the right to reinstatement to the same or an equivalent position at the end of FMLA leave. The suspicious timing of the employee’s termination, the trial court reasoned, was also evidence that she was fired in retaliation for taking FMLA pregnancy-related leave. In other words, firing the employee while she was on FMLA pregnancy-related leave was unusually suggestive of retaliation and cast doubt on the employer’s explanation for the termination.

The trial court noted that the FMLA does not create an absolute right to reinstatement and the “FMLA does not require an employee to be restored to her prior job if she would have been lawfully discharged without taking FMLA leave.” However, the trail court explained, when an employer denies an employee the right to reinstatement by firing her while she is on FMLA leave, the employer must demonstrate that it would have fired the employee even if she had not taken FMLA leave. In applying this principle to the facts, the trial court concluded that the employer could not establish that it would have fired the employee even if she had not taken FMLA leave. In support of its conclusion, the trial court pointed out that the employer “provided no explanation” in the employee’s termination letter for her discharge. Then, after the employee brought her FMLA lawsuit, the employer gave “inconsistent explanations” for her termination. Taking this evidence cumulatively, the trial court determined that a jury could reasonably find that the employee was fired because she took FMLA leave.

Employment Law Blog

As part of our commitment in assisting and protecting employees against unlawful employment practices, our Citrus County, Florida discrimination attorneys offer more information about pregnancy and maternity leave rights in our employment law blog.

Inverness, FL Discrimination Attorneys

Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida discrimination lawyers have dedicated their practice to representing employment discrimination victims. If you have been punished by an employer for taking pregnancy-related medical leave or have questions about your rights as a pregnant employee under the FMLA, please contact our office for a free consultation with our Inverness, Florida discrimination attorneys. You will receive personalized and individual attention from our employment law attorneys. Our employees’ rights law firm takes employment discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Citrus County, Florida discrimination lawyers are ready to take your case and fight for your employee rights.

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