FMLA maternity leave, ADA guidelines and perception.

by on June 23, 2009 · 0 Comment POSTED IN: HR Info Center

FMLA maternity leave guarantees a protected position equal to her original job

Mary Turnbull was a bank vice president. She took FMLA maternity leave, and was away for six months. While she was out, the bank’s business turned sour, and the department she headed was folded into another one. When she returned from leave, the president said her job had gone in the reorganization, and terminated her. This sounds like a business decision that nobody could reproach the employer for, but it wasn’t that simple.

Problems with maternity leave laws and FMLA compliance
Mary’s new baby had Down’s Syndrome, and the bank president knew about the baby’s disability when he let Mary go. When Mary sued under the association provision, the court let her case go ahead. The court said the close timing between the president’s learning of the problem and Mary’s dismissal created an inference of bias.

How the supervisor slipped up with FMLA maternity leave laws and ADA

The president may have thought Mary wouldn’t be able to concentrate on her work, with the handicapped baby taking up much of her attention. Bad assumption. One ADA lawsuit gave a concise explanation of the ways an employer might slip into this particular legal trap.

The court said there are three basic motives behind discrimination by association:
Expense. An employer might fire or demote an employee because his or her spouse or other family member has a disability that is costly to the employer. This could involve health coverage of the family member.
Contamination. An employee’s significant other is HIV-positive, and the employer fires the employee, fearing he or she may have been infected. Or a blood relative of the employee has a disabling, hereditarily transmitted ailment and the employer thinks the employee may develop the disability, too.
Distraction. An employer fears an employee will lack focus or miss work due to the need to care for a disabled relative or associate. So the employer transfers the employee to a job with less responsibility and lower pay.

Note An employer might be justified in taking action against an employee whose work actually did suffer because of time spent caring for a newborn (assuming the employee didn’t ask for FMLA maternity leave to provide the care.)

Because it’s not the employee who is disabled, the employer need not provide an accommodation of, say, shorter hours.

Guidelines for Managers
It’s somewhat counterintuitive to think that an employee’s home situation could give him or her grounds for a discrimination lawsuit under both FMLA maternity laws and ADA. But you may want to get into that mental habit when making decisions about employees with disabled relatives or close friends.

(Strate v. Midwest Bankcentre)

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