Florida (FL) Maternity Leave Law

August 15th, 2006 Posted by Jolie

I thought I would check in to shed a little light on Florida maternity leave laws. I was just over on the Florida Department of Labor web site and really learned a lot!

If you are a private sector employee, Florida has no laws that guarantee job protection or benefits for new parents. So if you are a private sector employee your best bet is probably to use the two federal laws that come into play for pregnant women and new parents. They are the Pregnancy Discrimination Act and also by the Family Medical Leave Act.

The Pregnancy Discrimination Act makes it illegal for employers to fire, refuse to hire, or deny a woman a promotion because she’s pregnant. Basically, she must be treated just like anyone else in the company! This goes for sick leave and disability too. If a company offers these things to other employees, then it also must offer them for pregnancy-related issues.

The Family Medical Leave Act allows private or public sector employees 12 weeks of unpaid leave to, among other things, take care of a newborn baby or newly adopted child. One thing though—if you plan to take advantage of this act you have to work for an employer with more than 50 employees in a 75-mile radius.

It’s really important that you understand that this act doesn’t guarantee your job will be held. A provision designed to ease economic hardship for businesses allows companies to let you go during your leave if you are in the top 10 percent of highest paid employees. Before you get too worried, know that your company has to notify you before you go on leave that you are one of these employees. The company also has to give you the option of returning to work before your leave is up.

If you are a public sector employee in Florida you have another option. Florida state employees are entitled to a maximum of six months of unpaid parental or family leave to care for a newborn or newly adopted child, or to care for one’s own or a spouse’s pregnancy disability or recovery from childbirth.

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180 Comments >> Posted in Employee Benefits,Family,Flordia,Paid Leave

Posted by: s. fischer

My wife works for [company name deleted] and was granted maternity leave for 12 weeks for having a baby. When she returned to work she found out that they used her non-paid vacation time and bonus time in conjuction with the 12 weeks maternity leave. Is this legal or not? Please let me know. Thanks
Posted by: Amelia

Hi S.! This is probably legal — Florida companies don’t have to give workers more than 12 weeks of FMLA leave, total. For a more complete answer, post a question on our employee HR forum at http://www.laborlawtalk.com. Thanks for reading! Amelia
Posted by: Kristi

Message
I have an employee that is having problems with pregnancy and has been in and out on disability during her pregnancy. The company has a 6 month short term disability program, but if she exceeds her 6 months during her pregnancy, would it be illegal to terminate her employment at the 6 month mark if that six month mark happens before or after she has the baby and before she can return to work? Thanks.
Posted by: Amelia

Hi Kristi! You question touches on a very importat issue for employers: having FMLA and short term disability run at the same time. As you know, FMLA gives most employees up to 12 weeks of unpaid leave. Most companies would require that an employee in this situation be using FMLA concurrently with her short term disability. If that is true, yes, the employee can be terminated after 6 months of total leave have expired, even if that mark is at or just after she has the baby.

She is entitled to 6 months total disability leave rather than only 12 weeks because that is what your company offers for other medical problems. Under the federal PDA or Pregnancy Disability Act, an employer must offer the same benefits and payments for pregnancy disability, as for other types of medical disability.

At least the last 12 weeks of this employee’s short term disability should be counted as FMLA. In order for the employer to do so, the employee must be informed in writing, at the beginning of the FMLA leave. If this is not done, the employee would be entitled to 6 months of paid short term disability, plus 12 weeks of unpaid FMLA leave. Very, very few employers are that generous.

We have a website set up especially to address questions from employers at http://www.humanresourceblog.com. Post your questions there for a more complete discussion.HTH, and thanks for reading the blogs!~ Amelia

Note that this answer would be different in some other states, but it applies to Florida.
Posted by: Jackie

I jsut found out I am pregnant. I am due in June. I work for a small business. I do ALL of the office functions. I do have a girl that comes in occassionally on a part time basis to help me but she is more on the marketing end. My boss asked me if 2 weeks would be enough time off. Then she told me the next day that 8 weeks was too much time off for her and that she can’t be without me that long. My issue is, how long should I really get and if I have complications will that count towrds my time off? I was put on bed reast with my first pregnancy and had issues with my second and I am afraid she is going to try to force me to come back to work even though I may be physically unable and threaten to fire me. Our company is small so we don’t fall under the 12 weeks unpaid time off rule.
Posted by: Amelia

Hi Jackie! Okay, get a grip! . Your boss cannot force you to do anything. The only person who decides if you come back to work too early, against doctor’s orders, is you. It sounds like your company is too small for FMLA to apply, which is a shame.

Here is our opinion: If you are so essential that your boss feels she can’t be without you for 8 weeks, then it suggests that you hold all the cards. Most women are physically disabled for 6 to 8 weeks after childbirth. (As you noted, many are also disabled during the last month or two of pregnancy.) Diplomatically inform your boss that you physically cannot work during that period, and give her the phone number of one or more temporary services.

Taking the time off that your doctor recommends should not be an area of negotiation between you and your boss. It’s a medical necessity. How would you feel if you lost the baby because you ignored your doctor’s advice about taking bed rest?

If your boss does fire you because you are out for childbirth, once you are off disability, you may qualify for unemployment. But our guess is that after 6 or 8 weeks, your boss will be delighted for you to come back to work. For other options, post your question on our sister site at http://www.laborlawtalk.com. HTH,and thanks for reading the blog!~ Amelia
Posted by: Pdoug

I have question. I am 10 weeks pregnant with my first child. I have been very sick. Is there a chance that my employer can let me go for taking time off for being sick from the pregnancy…I have had a Hospital note and Doctors notes from where i went in to see the doctor. It is a very very big company, the building I work in has atleast 250 people just on the day shift, and there is another building about 5 miles up the road.
Posted by: Amelia

Hi Pdoug! No, the employer probably cannot let you go due to missing time for morning sickness. Under the federal Family and Medical Leave Act, most employees are entitled to up to 12 weeks of unpaid, job-protected leave per year for a variety of reasons, including a serious health condition and bonding with a new baby.

FMLA applies to employers with 50 or more workers within 75 miles. It sounds like your company is more than large enough to qualify.

Pregnancy is always a serious health condition under FMLA. So any time that you miss due to morning sickness is unpaid, but your job is protected. However, be aware that this time off will also reduce the amount of time you can be off work under FMLA after you have the baby.

Suppose Janna is a full-time employee with severe morning sickness. She must take a total of 80 hours off work for morning sickness and doctors appointments during her pregnancy. That’s equivilant to 2 weeks of leave. Janna will only have a total of 10 weeks to take off after the baby is born. If she takes off more time than that, the employer can legally let her go.

If Janna did not miss any time before the baby was born, she would have 12 weeks to stay home after delivery. For more info, post your question on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: daniellesb1

Hi – I am employed by a company in Florida, which has over 400 employees in my building alone. I am 21 weeks pregnant today, and have been put on bed rest IN THE HOSPITAL due to incompetent cervix. I do not have any type of disability insurance… My job is computer related only, and even with a doctor’s note saying it will be ok to perform my job from the hospital bed — the legal dept in my company advised that they will not allow me to work due to worker’s comp not being liable if anything happened to me while working on computer… We need my income, and there is no way we can pay all our bills without it. With that being said, is there anything you can suggest that I do to be able to collect any type of disability from State ? Pls help…..

Thanks in advance,
Posted by: Amelia

Hi Daniellesb1! This is a tough situation and we wish we could be more helpful. Florida does not offer any type of disability benefits, period. There are only five states that do: Rhode Island, New York, New Jersey, California and Hawaii. An employee who will be disabled for 5 months or more may qualify for permanent disability from Social Security.

In some cases, an employer may have to make reasonable accommodations for an employee who is disabled but can still fulfil the primary responsibilities of her job. Usually, pregnancy or temporary disabilities do not qualify, however. You can also post your question on our sister site at http://www.laborlawtalk.com. They may have more suggestions. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Yesenia

Hi!!! I’m 13 weeks pregnant and I go to the doctor twice a month. My boss wrote me a warning letter that I’m not doing my job correctly. That’s not true because I’m the only one at the office. The other girl is my boss’s wife. She’s never here and everything in here it’s done. I think he’s looking for an excuse for fire me without paid me unemployment; of course I did not signed the letter. What can I do??? Thanks.
Posted by: Amelia

HI Yesenia! If your employer has 50 or more workers within 75 miles, your doctor’s visits are covered under FMLA, the federal Family and Medical Leave Act. If you are eligible for FMLA and your boss is writing you up for these absences, that is not legal under the regulations.

If your boss is writing you up for another reason, then that may very well be legal. Here’s the bad news: a written warning counts, even if the employee refuses to sign it. Instead, if this happens again, write your own explaination at the bottom of the warning, and sign it. Ask for a copy of the warning, and keep it. Also keep any documentation that you can, that you are actually completing all the work.

It is possible that the boss is thinking about firing you for reasons that have nothing to do with pregnancy. An employee who is fired for reasons beyond her control is usually eligible for unemployment. If the boss fires you solely because you are pregnant (not for missing time or poor performance) then that is illegal discrimination. For a more complete answer, post your question on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Julia

Hi. I have a question about short term disability. My company pays short term disability during the 6 weeks of maternity leave, however it is at a much lower rate than I thought. I was under the impression that disability pay was 2/3 of your regular pay ( and that is what many of my friends at other jobs have made on maternity leave). There is absolutely no way that I can pay even rent, let alone bills on the lower amount. What is the deal with this and is there ANYTHING I can do?
Posted by: Amelia

Hi Julie! This is a tough situation. No, there is probably nothing that you can do. There is no Florida or federal law that requires employers to pay workers anything while they are on short term disability. Some plans do pay 2/3 of the employees salary, but others pay 50% or less.

For more information, post your question on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Julia

I also have another question. I am an occupational therapist and could potentially work PRN in order to supplement my maternity leave. Is it possible to work part time and still collect short term disability??
Posted by: Amelia

Hi Julie! Unfortunately, probably not. Short term disability is paid only for the period during which someone is physically unable to work, as certified by their doctor. If you are physically able to work, then you don’t have a disability and are not entitled to benefits.

Also, under most plans, any amount that you earn while on disability would decrease your benefits. And, many employers have rules that prohibit workers from drawing short term disability benefits, even if they earn only $1 per week from another source.

Technically there is a difference between maternity leave and short term disability. Disability is available to employees who, for whatever reason, are physically unable to work. Maternity leave is a benefit for new mothers that is offered by very, very few employers in today’s world. If your employer offered maternity leave instead of short term disability, you might — we stress might — be able to do this.

Wish we had better news, but there it is. Feel free to post any additional questions you might have!~ Amelia
Posted by: NINA

Hi
I’m an international student (I’m on a student visa) in Florida and pregnant. I have no parents here. My question is how many weeks can I get after the delivery to take care of my newborn. Anyway after the maternity leave I’ll have to send her to a daycare and go back to school. Otherwise I’ll lose my status.
I’m due this week.I’m stressed.
Please, answer my mail.
Thank you
Posted by: Amelia

Hi Nina! Under federal employment law, employers must give workers up to 12 weeks of unpaid leave after the birth of a baby. However, being a student is not a type of employment, in the U.S. So each school sets its own rules concerning the amount of time that a student can take off after childbirth.

Most schools are pretty accommodating. After all, this is a situation that they encounter a lot. But you should make an appointment with your student advisor ASAP, to discuss how you will handle this situation. In some cases, it might be better for you to withdraw from your classes, and re-enroll in Jan. or Feb. for the next term.

Best wishes to you and your baby! HTH, and thanks for reading the blogs!~ Amelia
PS You can also post questions on our sister site at http://www.laborlawtalk.com.
Posted by: Kim

I recently went out on Maternity leave and had saved my vacation time for now being that I do not get paid for Maternity Leave. My boss only paid me for a couple of my days and said that he was doing me a favor because he does not have to pay me for any of it. Is this true?
Posted by: Amelia

Hi Kim! We believe that your employer is mistaken in this case. The U.S. Department of Labor compliance guide for FMLA says, “Employees may choose to use, or employers may require the employee to use, paid leave to cover some or all of the FMLA leave taken.” This means that an employee is not entitled to 2 weeks paid vacation plus 12 weeks of unpaid FMLA leave. But, if she wants to use 2 weeks of paid vacation instead of 2 of the weeks of unpaid FMLA, she may opt to do so.

Here’s the link: http://www.dol.gov/esa/whd/regs/compliance/1421.htm

Different rules apply to sick time.

These rules, along with many others regarding FMLA, will change on January 1, 2009.

Our suggestion would be, show this U.S. DOL web page to your boss. If he still refuses to pay you for vacation time, then call the U.S. Department of Labor to report a violation of FMLA. You can also post questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Unknown

Hi, I work for a small time daycare and was wondering how many weeks I am entitled to for my maternity leave. My boss already told me she understands and found someone to cover me but she’s really iffy, so would it be illegal for her to fire me or tell me she no longer needs me when I try to return to work? Also I was supposed to be getting induced and I told her I would PROBABLY have the baby on a certain day but those plans changed, I talked to her about it and she told me to call her if I don’t go into labor, can she tell me she doesn’t think I should come in or put me on maternity leave when she wants to?
Posted by: Amelia

Hi Unknown! There is no Florida family leave law that covers small companies. The federal FMLA covers only employers with 50 or more workers within 75 miles, so it probably does not apply. So yes, the employer can probably let you go when you miss several weeks of work due to the birth of your child.

However, under the federal Pregnancy Discrimination Act, she cannot tell you when you must go on maternity leave, or fire you before you have missed any work time. This law is enforced by the EEOC at http://www.eeoc.gov. Your employer can request a note from your doctor that says it is safe for you to work in your final months of pregnancy. But she cannot tell you when to stop working, as long as you have your doctor’s permission. For more into, post your question on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Dahlia

I am due on 1/31/09, I was planning to work up until the week before my due date. However, yesterday I was informed by my employer that I need to take maternity leave on 1/1/09. He told me his business is in financial trouble and he has to start cutting back. Can I claim unemployment? I am in Florida.
Posted by: Amelia

Hi Dahlia! Legally, your employer cannot tell you when to take maternity leave. The federal PDA or Pregnancy Disability Act requires that the decision of when to go on maternity leave be left up to the woman, and her doctor.

Your employer can, however, lay you off, temporarily or permanently. In that case, you would be entitled to unemployment benefits as long as you are physically able to work, and seeking work. Women on maternity leave do not qualify for unemployment.

If the employer decided to lay you off because you are pregnant, that would be illegal discrimination. If he decided to keep another employee because he or she was not pregnant, that would also be illegal discrimination. If you believe that this is pregnancy discrimination (and it is, if he is telling you to go on maternity leave) then file a complaint with the EEOC. You can also post questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Andrea

Hi Amelia! I’m 7 months pregnant and working for a Florida company as a contract employee. I have all benefits given to regular, permanent employees with the exception of rolling over vacation time and title. I do the same work as my counterparts, but am hourly rather than salary.

As of today, my contract is set to expire January 31, 2009. I am tentatively scheduled for a c-section on February 20, 2009 at 38 weeks, 5 days.

Someone told me that Florida law would require my current insurance company to cover the remainder of my pregnancy, including delivery. However, my understanding of the company policy would be that I’d have insurance through the end of the month I was let go. Which would be January.

I qualify for FMLA and STD as an employee. I don’t think unemployment would help since I am technically a “contract” employee (by definition and title only, I’ve been here 2.5 years).

I am looking at a HIGH possibility of losing my job at the end of my contract as my company has been doing permanent layoffs all year long.

What are my options? Does my employer have to cover the remainder of my pregnancy under Florida law?
Posted by: Amelia

Hi Andrea! This is an unusual situation, because of your status as a contract employee.

There is no Florida or federal law that your current insurance or employer must cover your pregnancy. (If Florida employers were required to pay for all pregnancies, regardless of the employee’s insurance status, the employers would put contraceptives in the drinking water at work!)

If your employer has more than 20 workers on group health insurance, usually by law they must offer you COBRA. This federal law basically requires that your current group health insurance be extended for up to 18 months, as long as you pay 102% of the premium. The 102% includes both any portion formerly paid by your employer, plus an additional 2% processing fee. (It is possible that this does not apply to you, due to the terms of your contract.)

It is almost certain that your employment will end when your contract does. While the employer cannot make an employment decision based on your pregnancy, they have no special incentive to renew your contract. As an ex-employee, FMLA or company short term disability benefits would not apply.

You can also post questions on our sister site at http://www.laborlawtalk.com. HTH, and thanks for a great question!~ Amelia
Posted by: Yesenia

Hi, Amelia.
This is the second time that I posted a question and thank you very much for answering it. I’m five months pregnant and my employer gave me two weeks vacation and they havent’t pay me yet and they are suposed to pay my two weeks vacation; this is my second year working with them and when I started there I was told that I have two weeks paid vacation which they did last year but this year they haven’t pay my vacation. Is this legal???.
Thanks Yesenia
Posted by: Amelia

Hi Yesenia! We’re happy to answer your questions. You can also post them on our sister site at http://www.laborlawtalk.com, for more input.

It isn’t right that the employer has not paid you for your vacation time yet. In some states, you could report them to the Department of Labor, and the DOL would force the employer to pay you. Unfortunately, it doesn’t work that way in Florida.

If the employer has a written vacation policy, they should pay you. But there is no federal or Florida agency that will enforce this. Your best bet is to try to work this out with the employer. If that doesn’t work, you can take them to small claims court. (No lawyer is required for small claims court. Basically, you just explain the problem to the judge, the employer tells their side and the judge decides. Kind of like Judge Judy, but it’s for real, not TV.) Unfortunately, unless you have the vacation policy in writing, it’s going to be hard to collect in Florida. And even if you do, it’s far from a sure thing. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Xylina

I am actually asking for my daughter, She has worked for a large builder for a year and went on maternity leave 11.22.08. Just yesterday she was told they no longer need her services and let her go. They are giving her two weeks severance pay but no medical. Now she cannot take the baby to any followup appointments. I was considering on getting an attorney involved. Did they violate any Florida laws?
Posted by: Amelia

Hi Xylina! They probably didn’t violate any Florida laws, but they may have violated a federal law or two.
If your daughter was terminated because she was on FMLA or maternity leave, that’s discrimination based on pregnancy, which is not allowed under the federal PDA or Pregnancy Discrimination Act. However, if they are laying off a number of people, it is probably not illegal discrimination.
IF the employer has 20 or more workers on group health insurance, by law they have to offer your daughter COBRA. This federal program allows the employee to continue their health insurance coverage — at a price. Under COBRA, the employee must pay the entire premium, including any portion formerly paid by the employer. For more answers, you can also post questions on our sister site at http://www.laborlawtalk.com HTH, and thanks for reading the blog!~ Amelia
Posted by: Alissa

Hi Amelia,

I am 23 wks pregnant. I am contracted for a company. The company that I am contracted through said that they would pay me for maternity leave as long as the company I am working for would pay me maternity leave. How do I go about asking the company that I am working for to pay me for maternity leave? They have been asking me to only work half days and telling me that I should have my doctor put me on disability. From what I am understanding is that even if i was to get put on disability I wouldn’t be getting paid for it. What is the easiest thing I can do to get the company I am working for to pay me maternity leave. I am the only income that my family of 4 has.
Posted by: Amelia

Hi Alissa! We hate to be negative, but the probability that a company will pay a contractor for maternity leave is about the same as the probability that you will win the lottery.
The whole purpose behind hiring contractors is that the company does not have to pay expensive benefits like short term disability and maternity leave.
By all means, check your employee handbook and the contractor agreement that you signed. But it would be very, very unusual for an independent contractor to have any benefits.
You are also correct in thinking that unless you have short term disability insurance, perhaps through your employer, you will not have any income while on disability.
Ask the HR department or a supervisor at the company where you work what benefits like disability, maternity leave or FMLA are available for someone in your situation. Frame the question as “I just want to know for when I’m not able to work, sometime in the future” so the employer doesn’t get the impression that you are ready to leave now.
The employer may be engaging in discrimination by pressuring you to go on disability now. The federal Pregnancy Discrimination Act permits women to work until they and their doctor decide the woman cannot work any longer. Some women work right up until delivery. However, even if the employer is discriminating, it is going to be an uphill battle to win, given the fact that you are not an employee.
We wish we could offer more help in these circumstances. By all means, look into having the baby’s father support you by taking him to court if necessary. And, if you need to you can apply for TANF, Temporary Aid for Needy Families. Feel free to post any additional questions you might have. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Rose

Hi, I am going to give birth in 4 weeks. I work in a family restaurant and bar. They have no problem with me going out for maternity leave but when I come back Ii might not have my same shifts and hours which will change the money I earn. Do they have to give my same shifts and hours or can they change it on me as long as they give me a job back??!!?
Posted by: Amelia

Hi Rose!

This will depend upon whether or not you are covered by the FMLA, the federal Family and Medical Leave Act. Under FMLA, employees must be returned to their same job after leave. That means a job with the same wages, benefits, hours, etc. So if you will be on FMLA, you should receive the same shifts after maternity leave.

However, FMLA only applies to employers with 50 or more workers within 75 miles. Florida has no family leave law for smaller employers, so they are not obligated to even give you a job, if they are a smaller employer. For more info, post your question on our sister site at http://www.laborlawtalk.com HTH, and thanks for reading the blogs!~ Amelia
Posted by: andrea

Hi Amelia, I have another question…..this time about COBRA. I qualify for it and have made the decision to stick with it for at least through the baby being born and so that my husband can have the big snip covered. (we’re 35 and done at two kids)

What do I do about the time between when my coverage “ends” on the 31st of this month and when my HR lets our administrator know that I need COBRA and then until I get and pay the bill. I have 5 weeks left til this baby is scheduled to arrive.

How do I handle the billing offices of the OB (who does know the situation) and the hospital?
Posted by: Amelia

Hi Andrea!
You don’t need to tell your OB or the hospitals about your job change — just show them your currrent insurance card.

Under COBRA, your current insurance coverage will continue for 18 months, or until you stop paying the premiums. Normally, you will not be issued a different insurance card. Your insurance is still with the same company, with the same coverage — you’re just paying 100% of the premium.

As long as you pay your first COBRA premium within 45 days of receiving your COBRA notice, there should be no gap in coverage. Because of your situation, I would suggest that you pay the COBRA premium as soon as you receive the papers. HTH, and thanks for reading the blogs!~Amelia
Posted by: kerri

Hello, my situation is a little different. I work for a resort here in Florida,I am considered part time because of the hours I work, I have been at my job for over a year and am 6 months pregnant.I know I need to take some time off work after the baby (my first), but my problem is I dont have anyone else to help with my bills. Is there anything I can do or appply for,for help????
Posted by: Amelia

Hi Kerri!
That’s a tough situation to be in. You will probably qualify for FMLA leave for up to 12 weeks, but FMLA is unpaid, as you probably know. Still, that will ensure that you have a job to return to after 12 weeks.

Legally, the child’s father is responsible for supporting the child, including paying medical bills. It is not fair for your child to grow up in poverty (and that is what will happen if you do not collect child support.) So you must take action to protect your baby by pursuing this.

You can also apply for TANF, Temporary Assistance for Needy Families, the program that was once called welfare, and food stamps. Both of those programs will provide some temporary help, and TANF will assist you in collecting child support from the baby’s father. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Melissa

Hi Amelia. I worked for a small authorized retailer for a cellphone company in Florida. When I found out I was pregnant, I took up on the company’s medical insurance and because of that, everyone at my job including all my bosses found out that I was pregnant. In the time I had no other insurance so I wasnt able to go to a doctors office for my severe morning sickness. Two days after I got my health insurance, the company said that they were letting me go because I was too expensive.
So I filed for unemployment and they didn’t give it to me because they said there reason for letting me go was because I was always late. I would be late on occasion (for how sick I was, it was very little), but I would always call and they knew it was because of the morning sickness. I never call out sick and I never was given any warning. I never signed anything or was told by anyone that being alittle late was a big problem. My boss told me that whenever I feel sick, to call her and let her know I would be running late, so I did.
Now it seems like they did fire me because I am pregnant and dont want to pay me the unemployment. The company has been downsizing a lot and everyone else that was let go got unemployment except me. I filed for an appeal. Do you think I will be able to get my umemployment? If proven they fired me for being pregnant, and I entitled to anything else?
Posted by: Amelia

Hi Melissa,

This is a tough situation. First of all, it’s not entirely clear how everyone learned that you were pregnant. If it was part of a discussion about health insurance with a supervisor or HR person, that might have been a violation of federal HIPAA laws.

In many states, when you are unemployed through no fault of your own, you qualify for unemployment. An employee who was tardy “just because” would probably not qualify for unemployment. However, if you were repeatedly tardy due to severe morning sickness, that is beyond your control and it is possible that you will win the appeal.

If the employer had 50 workers within 75 miles, you should have been offered unpaid FMLA leave.

We agree that the employer is trying to avoid paying unemployment. Almost all employers do — it’s more or less a game to them, to reduce the employers insurance premiums. Because the employer laid off a number of people, you would probably not get your job back — but you might qualify for unemployment on appeal.

If you feel that the employer discriminated against you due to your pregnancy, you can certainly file a complaint with the EEOC at http://www.eeoc.gov. They will investigate, and if they find a basis for your complaint, they will sue the company for you — at no charge to you.

We do want to clarify one point, though. Being tardy– even a few minutes tardy — is a problem for every employer. If you are physically able, you need to get to work on time. (If you are not physically able to get to work on time repeatedly, you do need to see a doctor, for your own protection.) Just something to keep in mind for your next job. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Melissa

Thanks so much for replying to me! I wanted to clear up a few things u wanted to know. How the company found out was I asked one of my supervisors about pre-exsisting conditions for the health insurance. We were reading the packet and it talked about pregnancy, that is when she asked me….more like pressured me into telling her, so I did tell her, but because I felt like I had to tell her. My mistake. So over the course of a few weeks, the rest of the company found out. I only willingly told one other employee (not in management or supervisor position) but that was after all the other management found out about the pregnancy. The company unfortunatly was less than 50 people in 75 miles so I know that I wouldnt of qualified for the FMLA, but it seemed like after they found out about the pregnancy, they were always asking me “what am I doing for leave when I have the baby” I would usually tell them I dont know (I was only 7 weeks pregnant) or that I return to work. I would have been the first woman in the company to work there and be pregnant.
Posted by: Amelia

Hi again Melissa!
Thanks for the clarification. This does sound like a violation of HIPAA, which is enforced by the U.S. Department of Labor at http://www.dol.gov. The supervisor should not have required you to tell her you were pregnant, and because it was part of a healthcare conversation, she should not have shared that information with the other managers.

You may very well be the victim of pregnancy discrimination. It sounds like the company has mostly male employees and does not know how to deal with a pregnant worker. HTH, and thanks for reading the blogs!~ Amelia
Posted by: sky

I am 10 wks preg, and I have let my boss know. He says that I can only take two weeks off work when the baby comes. Can he do this and is this even enough time to heal? I do work for a small comp probably just under 50 people, it is a very physical job. I do not get paid for this but he said I might be able to collect unemployment? Also they did pay another employee for 12 weeks when she gave birth.
Posted by: Amelia

Hi Sky! Your boss can’t tell you that you can only take 2 weeks off for childbirth. Only you and your doctor can decide how much time you need to take off. Normal disability period after chidlbirth is 4 to 8 weeks. Especially if your job is very physical, your doctor may not release you to go back to work sooner.
If your employer has 50 or more workers within 75 miles, for 20 or more weeks of the year, then you are entitled to 12 weeks of unpaid, job-protected leave under FMLA.
If your employer has less than 50 workers, then you may not be entitled to your job back, if you are out more than 2 weeks.
If you lose your job because you are on childbirth disability, once your doctor clears you to go back to work, you may — we stress may — qualify for unemployment while you search for a new job. But you will not qualify for unemployment while you are unable to work.
If the company paid another employee for 12 weeks of maternity leave, they may be obligated to pay you. If they don’t, and the difference is based on race, color, religion, etc. that could be illegal discrimination. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Mrs, Fuentes

I was on maternity leave from 12/3/08 to 03/04/09 with no pay. Is there any state or govt assistance.

Also my 2yr as an employee at my current job was in February.
Do I have vacation rights for this year?

Thank you
Posted by: Amelia

Hi Mrs. Fuentes! Unfortunately no, neither the state of Florida nor the federal government offer any short term disability. If your family has no income, you may qualify for TANF or Temporary Assistance for Needy Families, the program formerly known as welfare.
Florida employers are not required to grant paid vacations to employees. If the employer does offer paid vacations, the employer can set the policies surrounding them. HTH, and thanks for reading the blogs!~ Amelia
Posted by: tcfit

i was out on FMLA leave from dec 3 to feb 25th and i got a letter from my employor dated the 24th feb stating they have terminated my employment as of the 26th feb for failure to return to work. can i claim unemplyment in state of florida i am able to work now thanks
Posted by: Amelia

Hi tcfit! Under federal law, employees are entitled to 12 weeks of unpaid, job-protected leave under FMLA. So unless you used some FMLA time before Dec. 3, you are probably entitled to your job back.
But to answer your question, yes, you can certainly apply for unemployment and may well be eligible. HTH, and thanks for reading the blogs!~ Amelia
Posted by: LNA0513

I have had a lot of trouble with my pregnancy and have had to use most of my sick/annual time. I dont have enough to cover my 6 weeks of maternity leave. I will basically get paid 14.50 weekly instead of my 40 hours if I break my time up into 6 weeks. My question is there any form of payment for the difference in pay? Does the Short Term Compensation with Unemployment Cover this? Could I apply for Unemployment Compensation? I really need my pay its my first baby and I am going to be a Single parent.
Posted by: Amelia

Hi LNA0513! Unfortunately, no Florida does not offer any short term disability benefits. And, you cannot collect unemployment while you are on childbirth disability. You must be ready, willing and able to work, and actively looking for work, to collect unemployment. You may qualify for up to 12 weeks of FMLA leave, but it is unpaid.
Although you are a single parent, you owe it to your baby to collect child support from the father. If you cannot afford a lawyer, contact the local Legal Aid society. If you are still destitute, look into TANF or Temporary Assistance for Needy Families, the program formerly called welfare. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Lex111

I live and work in Florida at a state public University. I know “rolling” FMLA applies here, as does Parental Leave (up to 6 months/unpaid/may begin 2 weeks prior to expected date). Parental leave may be used concurrently with, not in addition to, FMLA leave.

My husband and I would like to begin planning for a baby but I’d like to know my rights beforehand.

According to the short-term disability agency I spoke to, with a 30 day elimination period (I would plan to use 30 sick days during this period), I would be entitled to only 2 weeks of disability pay as only 6 weeks leave is standard for a normal pregnancy. Where does this 6 week rule come from if FMLA is 12 weeks? I realize they are probably two different things but I would appreciate any clarification.

Does it make any sense to start a short-term disability policy for pregnancy if it only covers 6 weeks for a normal pregnancy/8 weeks for c-section, (unless there is a Dr. note saying I can’t work past 6 weeks) taking into consideration there is a 30 day elimination period? Please help me sort this all out.

Thank you!
Posted by: Amelia

Hi Lex111! The questions you pose are shared by many women.
FMLA is the federal Family and Medical Leave Act, which grants employees up to 12 weeks of unpaid, job-protected leave for several reasons, including childbirth or baby bonding.
(We will note that your employer, a Florida university, very generously offers up to 6 months of unpaid leave — far beyond what most Florida employees receive.)
However, short term disability insurance covers only the period when you are physically unable to work. It will not pay benefits for the time you are physically able to work but choose to stay home with the baby, for baby bonding.
Suppose your baby is born on June 1 and your doctor releases you to go back to work on July 15. Your employer permits you to stay home with the baby until December 1. However, because you are not disabled from July 15 to December 1, you are not entitled to any short term disability payments for that period.
You are correct that for a normal pregnancy and delivery, the mother is disabled for 6 weeks, or for 8 weeks with a c-section. However, not every pregnancy is normal. Every week we hear from young mothers whose doctors have put them on bed rest a month before their due date. It is not unheard of for a woman expecting twins to be on bed rest (i.e. unable to work) starting in the 5th or 6th month. In that case, the woman would collect short term disability benefits for 4 or 5 months before delivery.
Every short term disability insurance policy is different. Many pay benefits within one or two weeks, rather than after a 30-day waiting period.
New FMLA regulations permit employees to use all their vacation time, personal days, PTO or other paid time off, in addition to sick days, while on FMLA leave. However, some short term disability policies will not provide benefits until you have exhausted all your paid leave.
The only way to decide if short term disability insurance makes sense for you, is to total up the premiums and then figure how much you are likely to be paid for 4 to 6 weeks of disability. (If the short term disability premiums are high, you may be better off putting that amount in the bank every month, and then drawing on your savings when you are on leave.)
We will say, however, that it is a good idea for anyone to have short term disability insurance. We hear from people every week who have had an auto accident or a heart attack, cannot work, have no income, and do not qualify for any benefits. Many employers are offering short term disability with the group health insurance, for just a few dollars more. Be aware, however, that normally the policy will not cover the pregnancy, unless it is purchased before you become pregnant. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Lex111

Thank you for your response.

To clarify, if I sign up for a STD policy with a 30 elimination period and I use 30 days of sick (I was told that I don’t have to exhaust all leave)- my question is, do I start getting STD benefits on day 31 continuing for an additional 8 weeks?(which would total 12 weeks) Or do they continue for only an additional 2 weeks?(which would total 6 weeks). This is what I can’t seem to get a clear understanding of….I’m confused about whether 6 weeks or 12 weeks applies in terms of totaling STD and the 30 day elimination period. Thank you again for your help!
Posted by: Amelia

Hi again Lex111! If you were disabled for 6 weeks, and had a 30-day elimination period, then the benefits would continue for only 2 weeks.

You are entitled to short term disability only during the period that a doctor certifies you are not physically able to work. Many, perhaps most, employees on FMLA are not entitled to short term disability. Once the doctor says you are physically okay to go back to work, short term disability benefits stop — even if you continue to stay home on FMLA.

Every short term disability policy is different, and most do not include a 30-day elimination period. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Stacy

Hi, I gave birth on 2/3/09 and I’m currently ready to go back to work (I had 9weeks leave with 6weeks STD pay: 3 weeks prior to birth). I called my job to talk about my return date only to find out that my job has been filled because they couldn’t continue to pay a temporary agent due to financial hardship. So she then offered another position same pay but TOTALLY opposite shift hours and a more demanding position. Can I demand more pay? and when should I do so? Also, the position will not be available for another 30-45 days. Can they do this? My job has 50+ employees.
Posted by: Amelia

Hi Stacy! No, your employer probably cannot do this. If they have more than 50 employees within 75 miles, then you were entitled to unpaid, job-protected leave under FMLA. The federal Family and Medical Leave Act entitles employees to up to 12 weeks of unpaid leave. It applies to employees who have worked for the company for at least 12 months, and have worked at least 1250 hours during the past 12 months. The employer should have notified you that you were eligible for FMLA within 5 days of your first absence. Under FMLA< you must be returned to your original job. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Valerie

Hi I currently work for a small company (6) and recently got put on part-time after 6 years of employment (prior to announcing my pregnancy). Do these acts only apply to full-time employees?

Thank you.
Posted by: Amelia

Hi Valerie! FMLA applies to part-time employees, however, it only applies to employers with 50 or more workers within 75 miles. It sounds like your employer is too small to be covered under FMLA. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Heather

My sister is having twins. The doctor took her out of work at around 31 wks due to complications. If she goes full term for twins she ends up only getting about 5wks maternity and that’s with a c-section. Her company HR department will make no special accommodations, even though her boss has requested it. I live in NJ and our laws are much better. How do these laws work in FL, it seems unreasonable. I expect more from a company like hers which is founded and based on “Christian” principals. Any advise?
Posted by: Amelia

Hi Heather! No. We’d like to be able to offer more hope, but under the current laws, your sister may lose her job. Florida has no meaningful family leave law, so the federal FMLA applies. The FMLA permits an employee to take a total of 12 weeks of unpaid, job-protected leave in a 12-month period. Once that leave is exhausted, if your sister is not able to return to work, she will likely lose her job. This is the case in most U.S. states. Unfortunately, if the company was to make an exception for your sister, it would have to make an exception for every other employee, too, or be accused of discrimination. HTH, and thanks for reading the blogs!~ Amelia
Posted by: CANDICE

hi,
my question is, I have been working for a Florida company that has over 50 employees for three years now. I started and worked full time for a year and a half then went to part time due to attending school. When i started school they took my benefits away. I am now 6 1/2 months pregnant. My work wants me to write a letter of resignation but if i do so then i am pretty much helping them out? In the state of Florida am I eligible for an kind of paid benefits? especially the fact that i am single.

I have also been very sick with a cold, and have had severe back pain. It’s weird because they do not document when I call out for being sick. When usually they are on top of the game of documenting everything.

should i write them a letter of leave? they only give six weeks leave and i definitely want to stay home longer. If i do so then they say i have to resign but they will hire me back. And can I get any kind of paid benefits?

Thank you.
Posted by: Amelia

Hi Candice! If the Florida company has more than 50 employees within 75 miles, by law they must grant you up to 12 weeks of unpaid, job-protected leave under FMLA, the federal Family and Medical Leave Act. The great thing about FMLA is that you are guaranteed your same job when you return from leave.
There are no Florida paid benefits for maternity leave. Only the most generous employers offer this benefit. If the employer gives you any problems when you request FMLA leave, contact the U.S. Department of Labor at dol.gov.
You absolutely should NOT write the employer a letter that you quit. They will not have to give you a job after your maternity leave, and they will also avoid paying unemployment once you are able to work again. Please feel free to post any additional questions that you might have. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Marta Valls

I gave birth August 2008 and returned to work at the beginning of November. On April 23 I was let go due to resizing of the company. I was still breastfeeding at this time. Isn’t there a Florida law that helps women that are still breastfeeding their child??
Posted by: Amelia

Hi Marta! Several states including Illinois and New York have breastfeeding laws. These laws require employers to make reasonable accommodations to allow a breastfeeding mother unpaid time to use a breast pump. None of these laws prevent a brestfeeding mother from being laid off. And in any case, Florida has debated such a law several times, but has never passed one.
You may be thinking of WIC, a federal program to help poor mothers (and their infants) by providing a subsidy for milk, cheese, and certain other foods. TANF (Temporary Assistance for Needy Families, the program formerly known as welfare) also provides basic benefits for those who are in financial straits. HTH, and thanks for reading the blogs!~Amelia
Posted by: Sharon

I am 32 weeks pregnant. I called my HR dept because I wanted to ensure I filed the right FMLA paperwork and gave advance notice of my leave, etc. They informed me I couldn’t put in more than a 30 day advance notice (due date is Aug 5th) which is fine. But what the HR employee did say was that they only considered the 1st 6 or 8 weeks of maternity leave covered under FMLA. She said that I was not entitled to take the full 16 weeks (my company offers 4 additional weeks above the 12 weeks by FMLA) for “birth or care of a newborn child”, that I would be required to take what they call “parent leave”. This leave is unpaid for up to 3 years with no job protection AND by manager approval only.

Is this legal? Can they deny me the full 12-16 weeks FMLA offered to care of my new baby/bonding and require me to take the non-job protected leave?

Also, what is the distinction between using FMLA for a “medical condition” vs. “bonding & care” of a new child(assuming leave is taken immediately after birth)? Can your employer in Florida deny your FMLA claim for either scenario?

One more thing- I am due the 2nd 1/2 of a hiring bonus (I have the verbiage in writing in an offer letter that I will receive 1/2 the bonus at 6mos & 1/2 at one year of employment) and my 1 yr time period will be during my FMLA leave- do I get paid on that bonus as soon as I return to work?
Posted by: Amelia

Hi Sharon! The problem here is that an employee must have worked for the employer for 12 months, in order to qualify for FMLA. If you had worked there 12 months, you would be entitled to 12 weeks of unpaid, job-protected FMLA, and the employer could not deny it.

If the employer has more than 50 workers within 75 miles, then legally they must grant qualified employees up to 12 weeks of unpaid, job-protected leave under FMLA. There is no difference between FMLA for a serious health condition and for baby bonding. New parents, including parents of adopted children, are entitled to up to 12 weeks of unpaid, job-protected leave at any time of their choice during the baby’s first year. This FMLA leave applies to new fathers as well as new mothers.

FMLA is limited to a total of 12 weeks of leave in a 12-month period, for all reasons. So if you are entitled to FMLA you can take 12 weeks of unpaid, job-protected leave after the birth of your child, even though you will only be medically “disabled” for 4 to 8 of those weeks. Unfortunately, you are not qualified to take FMLA if you have worked for the employer less than 12 months.

Our best guess is that you also do not qualify for the company’s “birth or care of a newborn” leave, because you have been with them less than 12 months. Very few companies give any leave or maternity benefits to employees who have been with them less than 12 months. It’s usually: “See ya!”, meaning the employee loses her job for absenteeism.

So this employer is being extremely generous to give you unpaid leave for the 4 to 8 weeks that you are medically disabled after childbirth.

Normally, the second half of your “hiring” bonus would be due after you completed 12 months of work. That means if you took 2 months off for leave during the initial 12 months, the second installment would be due 14 months after your start date, assuming you were still employed in the same job at that time. (But the actual wording of your agreement may differ.)

The company may be taking this tactic to avoid paying the second half of your hiring bonus. If they gave you 6 to 8 weeks of unpaid leave, and put you in another job afterwards, they could avoid paying the “hiring bonus”. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://www.dol.gov/esa/whd/fmla/
Posted by: JC

Hi:
I work for a small company less than 10 employess; ZERO benefits. I am in charge of all the accounting.
I told my boss I was planning to have a family, she told me – they will give me 2 weeks off unpaid after my baby was born. (i didnt discuss it since I thought it’s imposible to leave a newborn after 2 weeks; besides your body has healed)
I found out I was 5 weeks pregnant. And decided to tell her.According to her I will work until the last day of birth, then I got 1 week to return.
Is this legal?
I know I am not protected by FMLA nor I will have paid leave. What’s the minimun I am legaly entitled to have off?
Posted by: Amelia

Hi JC! We really, really wish we had better news for you. Obviously, your boss is being completely unreasonable. Unfortunately, what she is doing is legal in Florida (although it would be illegal in many states.) As you noted, the company is too small to be covered by FMLA, the federal leave law. Sadly, Florida has no family leave law at the state level. So the employer is not required to give you even one day off.
There is a federal law against pregnancy discrimination. Unfortunately, it covers employers with 15 or more workers. Florida has a discrimination law, but it does not protect pregnant workers.
Most doctors require that a woman take 4 to 6 weeks off after a normal delivery, and longer after a c-section. So your boss is basically telling you that you will be terminated after the baby is born. The good news is, once you are recovered from the childbirth, you will probably qualify for unemployment benefits. And frankly, you are better off not working for this person.
Your boss cannot “make” you work until the day the baby is born. Most doctors will provide you with a doctors note to stay home sometime during the last 1 to 4 weeks of the pregnancy. Just call in as you usually would. The employer will terminate you, but that’s what you want — so you can collect unemployment. (Unfortunately, if you quit you probably will not be able to collect unemployment.) Sorry — we wish we could help more!~ Amelia
Posted by: Dawn

I understand the details of FMLA, but is there a minimum of PAID leave that must be provided for those who have just given birth? Our company policy so far has been 6 weeks paid leave, but some people are currently questioning that. I have just been given the HR portfolio & have not been able to find anything on PAID leave, only unpaid leave. If there is not a legal requirement, does anyone know the industry standards for a bank?
Posted by: Amelia

Hi Dawn! No. There is no requirement in Florida or in most states that an employer must provide even one day of paid leave for childbirth. Across all industries including banking, 75% of employers offer only unpaid leave. Since you are familiary with FMLA, you are aware that the new 2009 regulations permit an employee to use any vacation, sick leave or other paid leave as a portion of his or her FMLA leave.
If your employer is offering 6 weeks of paid leave, that is far more than most employers in the banking industry provide. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Alisha

Hi,

I work for a company that falls under FMLA and just finished my sixth week of maternity leave. Before I went on leave I told them I would be coming back in August but I want to come back now. My supervisor said that they cannot accommodate me right now but that they are holding my job and will put me back on the schedule in August. Are they allowed to do that? I know that I told them that I would be returning in August and realize they hired a temp to replace me for the summer, but if I want to come back early can they hold me to the date I initially said I would return?

Thanks! -Alisha
Posted by: Amelia

Hi Alisha!
As long as you have a doctor’s note that states you are physically able to return to work, they must return you to your original job. There is no provision under FMLA for an employer to force an employee to stay on FMLA longer than is necessary. Inform your employer that you intend to return to work on a certain date (perhaps 6/29 or 7/1 or whatever) and then show up. If they refuse to put you to work, file a complaint with the US Department of Labor at http://www.dol.gov — they will be in violation of the FMLA law. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Deborah

I work for a large (more than 50 employees) hospital rehabilitation center in Florida. In 2008 I had a baby and took 12 weeks FLMA along with 4 weeks of accrued sick/vacation time for a total of 16 weeks off. I am pregnant again and due in November of this year. I intended to take another 12 weeks FLMA along with my accured sick/vac time, just as I did last year. My employer says I can take the 12 weeks FLMA but this time I cannot use my sick/vacation time to stay out any longer than the 12 weeks. Is this legal?
Posted by: Amelia

Hi Deborah! Yes, this is legal, and it always was. The employer has simply changed their leave policies since last time you were pregnant.
Under FMLA, an employee is entitled to up to 12 weeks off for a serious health condition or baby bonding. However, there never was a requirement that the employee be permitted to use the 12 weeks plus several weeks of vacation or sick leave.
Under the 2009 FMLA regulations, you are permitted to use any paid leave AS PART OF your 12 weeks of FMLA. But the employer is not obligated to grant you even one additional day of leave, paid or unpaid — and most do not. A few states have family leave laws that grant additional benefits — Florida does not. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Jess

Hi,

I am 7 months pregnant and was informed today that my boss cannot grant my leave request, as it is too long. She says I am not covered under FMLA because I have not worked for the company for 12 months. My question is, if they decide to hire someone in my abscence, would I be able to file for unemployment benefits until I can find another job. My leave request was for 11 weeks, one week before I am due and 10 weeks after.

Thanks,
Jess
Posted by: Amelia

Hi Jess! Unfortuantely, your boss is right about you not qualifying for FMLA. And it sounds like your boss is telling you that you will not have a job to return to.
Employees who are willing and able to work, and actively looking for work, and out of work through no fault of their own, usually qualify for unemployment.
In all probablity, your doctor will not permit you to work for 6 weeks after the birth, and possibly a week or so before the birth. So you will not qualify for unemployment during that time, because you are not able to work. Once you have a doctor’s release to return to work, if you are actively looking for work, you may qualify for unemployment. The only way to know for sure is to apply. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Mishanda

hello,
Posted by: Mishanda

I am 6months pregnant. I worked for a corportation for 2 years. I seperated from them due to some problems in the company. Its a very long story but I became pregnant and came back to work in a different location 4 months later. In this time I lost my benefits but was rehired. I also recently became a single pregnant mom. I was reading our benefits handbook and am eligible to apply for short term disability; however, it says the plan has a 12-month pre-existing conditon exclusion. I am pretty sure that means I can’t get paid for maternity. If I cannot collect florida state unemployment, how do I survive with my two children????
Posted by: Mishanda

I apologize this is my first time using one of these blogs. That end statement actually would be 2 children and new baby? I would have absolutely no income. I also wanted to say thank you in advance for you answers or any help you could give me!

Mimi
Posted by: Amelia

Hello Mishanda!~ Amelia
Posted by: Amelia

Hi Mishanda! This is a really tough situation, and you have our sympathy. First of all, you may not lose your job. If the employer has more than 50 workers, you probably qualify for up to 12 weeks of unpaid FMLA leave. FMLA applies to an employee who has worked for the company for 12 months or more — but they need not be 12 consecutive months. So if you have worked 1,250 hours in the past 12 months, you can take FMLA and then return to your job.
However, money is still the problem. You are right. Your pregnancy is not covered under the company short term disability program, because you were pregnant when you came to work there. About 90% of US workers do not have paid maternity leave.
As far as supporting yourself and your children…the children’s father should be paying his fair share in the form of child support. For your children’s sake, make sure he does. The baby’s father should be supporting you while you are unable to work. If your income is very low, you may also want to apply for food stamps and TANF (Temporary Assistance for Needy Families) — the program formerly known as welfare. Check with the department of human services in your county to see what other assistance is available. HTH, and thanks for reading the blogs!~Amelia
Posted by: Amelia

Hi again Mimi! No problem! Best of luck to you!!~ Amelia
Posted by: Carrie

I work for a Hotel in Florida that employs up to 54 employees including part time. I have 5 weeks of paid vacation time that I am planning to use and I was curious as to whether I also qualified for the 12 weeks of unpaid leave under the FMLA act. I would like to use 2 weeks of the 12 to cover the extra two weeks that I am planning to take off. I have also asked the HR dept. to have all of this put into writin because as much as I hate to say it the ownership of this Hotel is very shifty and would try and get out of pretty much anything.
Posted by: Amelia

Hi Carrie! It appears that your employer has more than 50 workers within 75 miles, so FMLA (the federal Family and Medical Leave Act) would apply. FMLA entitles you to up to 12 weeks of unpaid, job-protected leave combined for pregnancy, childbirth disability and baby bonding. Be aware, however, that the employer can count your 5 weeks of vacation as part of FMLA. In other words, the employer must give you 12 weeks of time off, total, including your 5 weeks of paid vacation. You must also follow the employer’s usual policies regarding requesting vacation. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Christina

I am 5 1/2 months pregnant and have an interview with Hospice for a receptionist position. I don’t look pregnant yet but will soon. I am a single mom living alone. I am high risk and can no longer keep my current job much longer because of lifting. I am not seeking medical benefits at this time. If they hire me and find out I am pregnant, will I have a job when I come back? I am only taking 4 weeks maternity leave due to finances. Is that legal as well? If I don’t get this job and have to go on bed rest soon, how will I support myself? I have been looking for a job for two months now. If I had a sit down job I could work until due date.
Posted by: Amelia

Hi Christina! We have empathy for your dilemma. Unfortuantely, federal law does not provide much protection for pregnant employees unless they have been with the employer for 12 months or more.
If you had been working for the employer for 12 months before you went on maternity leave, then under the federal FMLA the company would have to return you to your job. (Assuming the employer is large enough for FMLA to apply.) However, there is no protection for a Florida employee who has been with the company less than a year, and takes 4 weeks of leave for childbirth or another medical problem.
As far as how you will support yourself, the baby’s father has a legal and moral obligation to provide child support. For your child’s benefit, you should pursue this as soon as possible. It is almost impossible for a single mother to support a child alone, unless she has a very high-paying job.
How long you are on maternity leave is up to your doctor. Many doctors require that you take 6 weeks off of work. However, some will let you return to work after 4 weeks. Unfortunately, the doctor cannot guarantee that your job will be waiting for you after 4 or 6 weeks.
You can apply for TANF (Temporary Aid for Needy Families, the program that used to be called welfare), food stamps and Medicaid in the mean time. You may also qualify for unemployment if you can still do some types of work (such as receptionist) but must leave your current job for health reasons. HTH, and thanks for reading the blogs!~ Amelia
Posted by: LG

Good evening:

I work for a community bank,with my employer you have to take any sick time, vacation, community time etc before taking the 12 weeks for FMLA which works perfectly for me. My questions are:
- when is it soon enough to tell my boss that I will be leaving for maternity leave?
- can I take more than the 12 unpaid weeks without loosing my job?
- and If after birth I decide not to work for some time, should i wait after the 12 weeks to “quit” or should I call them right away?
- also can my employer categorize me under “non rehireble” for not going back for 2 weeks after baby is born?
Posted by: Amelia

Hi LG! Under FMLA, an employee must give the employer as much notice as possible of the dates of FMLA, when it is foreseeable. Letting the employer know 60 days ahead of time is standard with maternity leave. If your due date is October 1, and you want to work as long as you can, then you would let the employer know on August 1 that you plan to take FMLA beginning October 1. (Naturally, if you go into labor sooner than expected, you will have to take FMLA immediately, but that is not “foreseeable.”)
If your employer permits you to take any paid leave before going on FMLA, that is very generous. Most employers count any paid leave such as sick leave or vacation as part of the 12 weeks of FMLA. So even though part of the leave is paid, the employee can be off for a maximum of 12 weeks.
In most cases, an employee who is off work for one day more than the 12 weeks of FMLA can be terminated for excessive absenteeism. So it is important to know what your expected return date is. (Note that any time off for prenatal appointments, etc. during pregnancy counts as part of the FMLA leave.)
You should inform your employer that you will not return to work as soon as you are sure of that decision. If your employer pays benefits while you are on FMLA (such as a portion of your health insurance permium) you will be required to repay that amount when you quit.
The employer can set whatever policies they like regarding who is and is not rehirable. If an employee went on FMLA/maternity leave and indicated that they would be returning to work, and never returned, the employer would be entirely justified in making that employee non-rehirable. The employee lied, and left the employer in a bind. However, if the employee makes it clear from the beginning of leave that she does not plan to return after the baby is born, most employers would make her rehirable — especially if the employee gave two weeks’ notice and volunteered to train a replacement. That is an understandable decision. But again, there is no law that an employer must be reasonable. HTH, and thanks for reading the blogs!~ Amelia
Posted by: renee

I have worked for this company for nine yrs and have given birth three times while being there. However before leaving on maternity leave the last time there was a dispute between myself and a new employee that is a family friend of the owner. We were bvoth given written warnings before I left on maternity leave. I tried to return to work early with a doctor’s note and was given the run around but eventually was allowed to come back but to a different position same pay, hours,etc. My question is since I am pregnant again how long do I have to be off if I have a doctor’s note to come back.
Posted by: Amelia

Hi renee! If the company has 50 or more employees within 75 miles, then you can take up to 12 weeks of unpaid FMLA. That’s 12 weeks total, for any prenatal appoints, for childbirth and for baby bonding. (A smaller employer can actually terminate you for excessive absenteeism.) Under FMLA, you are entitled to the same job when you return.
However, there is no federal or state law that you MUST take 12 weeks off. The employer can justifiably refuse to let you work without a doctor’s release. However, once your doctor has released you to work, the employer cannot force you to stay off work. That is pregnancy discrimination under the federal PDA or Pregnancy Discrimination Act. Under PDA, when a woman takes time off for maternity leave or returns from leave is a private matter between her and her physician. HTH, and thanks for reading the blogs!~ Amelia
Posted by: H W RUDD

I am an employee for the State of Florida. I am leaving next month to adopt a child from China. Am I entitled to the 6 months of unpaid parental leave to care for the newly adopted child.
Posted by: Amelia

Hi HW! In Florida, this is a matter of employer policy, not state or federal law. You need to consult with the HR department to learn what benefits you are entitled to.
Florida has no family leave law at the state level. If your employer is covered by the federal FMLA, you would be entitled to up to 12 weeks of unpaid leave for baby bonding, in the infant’s first year of life. This “baby bonding” leave also applies to adoptive children of any age, during the first year of placement OR adoption (but not both.) There is no Florida or federal law that requires employers to give workers 6 months of leave, paid or unpaid.
In some states such as Colorado, adoptive parents must be given the same benefits as biological parents. Florida does not currently have such a law. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Yazmin

I have a question I exceed my FMLA. I was with the company for 3 years i just had alot of complication in my pregnancy. Before giving birth I exceed my FMLA. so I filed for unemployment the denied me because I was on disability. However they send me a notice to file an appeal within 20 days. But I could because I was on bed rest and also I was in the hositpal mostly and i also delivered my baby with that time as well. So i filed the appeal late. They dismiss my unemployment. Would I be able to fight if I have supporting doc to show that I was unable to do anything.
Posted by: Amelia

Hi Yazmin! That depends upon why your unemployment was denied.
Generally, workers are entitled to unemployment only when they a) are physically able to work and b) are actively looking for a job. While you were on bed rest, in the hospital and for about 6 weeks after delivery, you were not physically able to work. So you would not be entitled to any unemployment benefits.
If you now have a doctor’s release, you can file another unemployment claim. It is not clear whether you will qualify or not. HTH, and thanks for reading the blogs!~ Amelia
Posted by: renda

I am 20 years old and five months pregnant. I was employed at a chiropractic office in May of 2009. As soon as i found out i was pregnant i decided to inform the Doctor (employer) of the news i figured i was new with the company and if i were to get fired i would of preferred if it would be earlier in the pregnancy where my chances of obtaining another job would be greater. So to my advantage i was not fired. I was very grateful and tried my hardest to prove that my pregnancy would not interfere with my job duties. Well time went by and my hours were cut and i sort of felt things were getting personal, but i never complained i was just happy i still had a job.
On Monday Morning September 14,2009 a truck carrying fuel turn over on the Florida turnpike, i do not take that route to work but the turnpike was shut down in order clean the spill. Do to the accident traffic in local streets was doubled. I did call work to inform them of my tardiness. When i arrived to work i was greeted by the Doctor (My employer) with a First Written Waring stating that i must ” to stay home and rest for 72 hours due to being 30 minutes late.
To my knowledge that is not a warning that is a 3 day suspension. Is that right? I have never been late and never the less received a warning for any infractions. The Doctor asked me what was the reason for my tardiness and i responded I was stuck in traffic. He raised his voice and said how about the rest of the times you’ve been late, and i said I’ve never been late. I told him it was out of my control, it was very bad traffic. He said well I don’t care and asked me to sign the warning. I read the paper and told him i didn’t agree with this punishment and that i was not going to sign it.
He yelled once again that if i didn’t sign it i would be fire. (Threat?) I told him i wouldn’t Sign it and he said then you are fired get out.

I was doing some research and i read that some states have laws that cover employers with fewer than 15 employees. I live in Florida and i wanted to know if Florida has that law. I am very devastated i lost my job for a reason that seemed very unreasonable. and i would like to do something about this.
Posted by: Amelia

Hi renda! This is a tough situation and you have our empathy. Unfortunately, there is no Florida or federal law that prohibits your employer from taking these actions if the employer has less than 15 employees. If our mail is any indication, many doctors do a poor job of HR management in their practice.
Your employer can suspend you for being tardy, even if it is your first offense. Employers have the right to decide how to discipline an employee. There are no rules about when an employee can or cannot be suspended.
There seems to be a misunderstanding about your attendance record. The doctor felt that you have repeatedly been tardy before, and you felt that you had not. A better way to handle this situation would be to remain calm and not argue the point. A few days later, when both of you are calmer, you could have a one-on-one discussion with the doctor and explain that as far as you know, this is your first episode of tardiness. It is possible that the doctor was given bad information, or that he expects you to arrive at work at a different time. (It is also possible that you are scheduled to arrive at 8:00 am, and when you arrive at 8:05 ot 8:10 am you do not consider that “late.” But the doctor might consider it late if you arrive at 8:01 am.)
There is no law against an employer shouting at employees. It is not considered good business practice, but there is no law against it.
It is futile to refuse to sign a written warning. Many employees make this mistake, but signing the warning only indicates that the employer had a conversation with you about this topic– not that you admit guilt. The warning still counts, even if you refuse to sign it. (Another employee can simply witness that the discussion took place, and sign the warning.) It is actually better to write “I disagree with the terms of this warning” and sign it, rather than refuse.
It would be illegal for the employer to threaten to kill you, or to beat you up. But there is no law against an employer threatening to fire you. In this case, although it sounds like the employer lost his temper, he was simply giving you accurate information. If you refused to sign the warning, you would be fired. You refused and you were fired. There is nothing unlawful about this.
We don’t really see that you have any case for wrongful termination. You were tardy, and you did refuse to sign the warning. We agree that this is unreasonable, but there is no law that requires employers to be reasonable.
If the employer fired you because you are pregnant, then you might have a case for discrimination based on pregnancy — especially if another employee has been as late as you were today, and not been terminated. However, because your employer is so small, the federal anti-discrimination laws do not apply to him. You could certainly consult an attorney, but we doubt that you would win any lawsuit. HTH, and thanks for reading the blogs!~ Amelia
Posted by: flmom09

hi! i am 29 wks pregnant and work at a pharmacy in fl. that is part of a chain grocey store. i have already had to miss and reschedule appointments because of work and my obgyn just decided that i could only work 8hr shifts instead of my 9-12 hr shifts and my direct supervisors and coworkers are giving me a hard time about it and have now scheduled me 8hr shifts 7 days a week. i am on my feet the entire day with only a 30min lunch and i have already had complications with my pregnancy including hyperemesis and hypotension and i also came down with the flu and missed 2 days. are they beaking any laws by scheduling me 8hrs 7days a week and when should i be able to say enough and start my leave?
Posted by: Amelia

Hi flmom09! The employer is not breaking any law by scheduling you 7 days per week, as long as they pay you overtime after 40 hours.
If your employer has 50 or more workers within 75 miles, and you have been with the company for 12 months, you are entitled to up to 12 weeks of unpaid, job-protected leave under FMLA. You can use FMLA intermittently for prenatal appointments. If you like (and your doctor agrees) you can also use FMLA to work fewer hours. For example, you could work 40 hours per week instead of 56 hours per week, and use 16 hours per week of FMLA. However, be aware that every hour of FMLA that you use before the baby is born, is one hour less you will have after the baby is born.
Assuming that you work 40 hours per week, you have 480 hours of FMLA. If you use 80 hours of FMLA now, you will only have 400 hours (10 weeks) after the baby is born.
When you go on leave is up to your doctor. When he provides a note that you are no longer able to work, you will begin FMLA. Many women like to work as long as they can, so they will have more time at home with the baby. However, be aware that if you are gone one day longer than your 12 weeks, you could lose your job.
Ideally, you would give your employer at least 30 days notice of when you will be taking FMLA, so this is a good time to discuss that with your doctor. HTH, and thanks for reading the blogs!~Amelia
Posted by: Maria

I work in a private preschool of around 12 employees. 3 women are pregnant and they are only going to be allowed 4 weeks out from the time they take maternity leave (NOT from the time the baby is actually born) if they want to keep their job. One, who is having complications, has left and the baby is not due until the end of next month.

Is this legal?
Posted by: Amelia

Hi Maria! Yes, this is entirely legal — in fact, the employer is being generous.
Under the federal FMLA, or Family and Medical Leave Act, employees are entitled to 12 weeks of unpaid, job-protected leave for the birth of a child. (That’s 12 weeks total, not 12 weeks after the baby is born.) However, this law only applies to businesses with 50 or more employees within 75 miles. Some states have laws that provide similar benefits for employees at smaller companies. Florida has no such law — they have no family leave law at all.
So the owner is providing 4 weeks more of maternity leave than she is required to by law. Having 25% of the employees at such a small company out on maternity leave is difficult, and we applaud the owner for allowing this. She could have terminated the women as soon as they missed a week or so of work. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Kristina

Hi!
I recently returned to work after having to take leave for a knee injury. I went out on FMLA and STD from Aug 4th to Oct 17th of this year, I was cleared to return to work with sedentary duty only after being out for 2 weeks (STD elimination period was 14 days), I work as a floor nurse and was told that they did not have a position available in my job category and that I would have to take my FMLA leave.Are they allowed to force me to take my FMLA leave? I have been with this company for 5 years and in the past they have always made accomodations, I wasn’t even offered a job in another category. My reason for this question is that we were in the process of trying to get pregnant when I went out, and would still really like to continue with this plan for us. Is there any law requiring them to grant me leave for birth of a child? And I know that with FMLA that it is 12 weeks in a rolling 12 month period of time, so does that mean that I could plan for leave any time after Aug4th of next year and still be covered if its rolling or do I have to wait until after Oct17th of next yr to plan for leave again? They are currently in the process of cutting back pay on our STD from 100% of your salary to 75% (for my length of service) and we can purchase supplemental coverage for the other 25%, just am not sure if I should worry about purchasing for this year if it is not going to be a possibility of going out on leave until after open enrollment next year? My manager isn’t familiar with our rules and I hate to have to ask HR after just returning back from my leave.Also with this supplemental I believe they are changing the max time out to 90 days from 60 (which I exhausted) so does that help as far as giving me an extra 30??
Thank you!
Posted by: Amelia

Hi Kristina! Sorry, but it sounds like the employer handled this appropriately. Yes, the employer can force you to take FMLA when you are off work for an extended period for a medical problem. The alternative to granting FMLA is to fire you for excessive absenteeism.
An employee with a permanent disability is entitled to a reasonable accommodation under ADA, the Americans with Disabilities Act. Your knee injury was not a permanent disability, and there really is no accommodation for a floor nurse who cannot stand or walk at work. They are under no obligation to offer you another position when the disability is short term.
No, in Florida the only leave that employers are legally required to grant upon pregnancy or the birth of a child is FMLA. If you have used all your FMLA, you would be terminated for taking even a few days off for pregnancy or childbirth.
It is important to understand that short term disability benefits and FMLA are two entirely separate issues. A short term disbility insurance policy pays monetary benefits under some circumstances — but does not guarantee the employee’s job. Some employees can collect short term disability insurance, but be terminated for taking more time off than FMLA permits. The switch from 60 days of std to 90 days does not extend FMLA.
We suggest that any employee who does not have substantial savings buy short term disability insurance whenever possible, not just if they expect to get pregnant within the next 12 months. It protects you from unforseeable events. For example, in your case, if you re-injured your knee, you would have no job, and no income. Short term disability benefits would be very helpful in that situation. We get sad questions every week from people who neglected to buy it.
It may be that the 75% short term disability benefit is provided by the employer rather than through an insurance policy. Be aware that employers pay short term disability benefits only to employees, not ex-employees. If you exceed your FMLA leave for the year, even by one day, you are likely to be terminated. In that case, you would be eligible for benefits under an insurance policy, but not directly from the employer.
There are four different ways that an employer can calculate the 12-month period for FMLA. The rolling calendar is the most common, but your employer may be using another method. If your employer is using this method of calculation, you are correct that you would not have even one more day of FMLA until August 4, 2010. If you decide to inquire about this, you should frame it in terms of “I just want to make sure that I don’t exceed my FMLA by taking too much time off.” Unfortunately, even making the inquiry probably makes your employer think you are a temporary employee.The best way to understand the employer’s policies is probably to very carefully read a current employee handbook. You can casually ask for a copy of the handbook without raising any red flags. This is a complex issue, so feel free to post any additional questions you might have. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Kristina

Thank you soo much for your response! I do know that my employer definitey goes by the rolling calendar method for FMLA, so basically I will start having days again after Aug 4th? Thank you for the suggestion to wording it to HR. =)
Posted by: Amelia

Hi again Kristina! We are so glad we could be helpful!! Yes, if the employer uses the rolling calendar method, you will qualify for FMLA again on August 4, 2010. Feel free to post any additional questions!~ Amelia
Posted by: jessica

hi i am currently 5 months pregnant and have suffered from hyperemesis my entire pregnancy. i have almost completly used up my entire fmla leave and im not due until march 2010. can i ask for an accomodation under ADA disability for my condition hyperemesis? the accomodation would be exteded unpaid leave after my fmla time has run out. i only have 100 hours left and i usually use about 16 hrs a week because im so sick. i requested an accomodation and my employer wrote me a letter stating that at this moment there is no need for an accomodation but once my fmla time is exhausted that i could come talk to them again about a possible accomodation and to see whether or not the ADA applies. i feel the ADA does apply but by the time they approve my accomodation i would have undocumented days off because my fmla would have run out therefore they could fire me because of missing days due to complications.
Posted by: Amelia

Hi jessica! Sorry, but this is not a matter of your “feelings” about whether or not it is a disability — it is a matter of federal regulations issued by the EEOC. Pregnancy itself is not a disability under the ADA definition. The Americans with Disabilities Act does not cover transitory conditions. The EEOC defines a condition as “transitory” if it lasts less than 6 months. If you developed hyperemesis (severe morning sickness) during the third month of pregnancy, and it ended during the eighth month, that would be a transitory condition, and ADA would not apply.
However, if you developed hyperemesis during the first month of your pregnancy, and it continued for the full 9 months, it might qualify as a disability under ADA. In that case, the employer would be required to give you additional unpaid time off for hyperemesis until March 2010. However, once you went into labor and had the baby, the hyperemesis would end. The employer would not be required to give you any additional time off under ADA — not even one day (childbirth is transitory, and not a disability under ADA.) Since you have used all of your FMLA, the employer would not be required to grant you any additional time off, and you would lose your job (depending upon how the employer tabulates the FMLA 12-month period.)
Your fears about being fired while they are reviewing your case under ADA are unfounded. This situation occurs with every employee who is entitled to unpaid leave under ADA, and the employee is reinstated with no penalties if ADA applies. However, ADA only has limited application in your case. HTH, and thanks for reading the blogs!~Amelia

Read more about ADA and Disabilities at: http://www.eeoc.gov/laws/types/disability.cfm
Posted by: jessica

hi thank you for answering my earlier post. i understand that its not about my feeling but i just figured my condition was or should be covered under ada since it has started at the beginning of my pregnancy and still hasnt ended. my employer does offer short term lwop which is 90 days so once the baby is born i should be allowed to use those days to recover hopefully since they have given short term disability to other employees for car accidents and other medical disabilities. the reason for my concern was because when i intentially filed for fmla they tried to deny my and gave me the run around until i contacted dol and then magically i was approved for my condition hyperemesis and pregnancy go figure. i just thought they might try the same approach once my fmla has expired and i request more leave under ada for my condition.i just thought it was weird that someone at my job broke there leg and my employer gave them light duty assignments while using short term disability but when i requested an accomodation for my condition being lwop once my fmla has expired they didnt actually tell me denied but told me to inquire about the situation once the time has actually expired. and i felt i would be at a disadavantage because until they approve my ada accomodation any days that i miss from my condition could be considerd excessive absenteeism and then they could fire me because i was no longer protected by fmla since my days had run out already.
Posted by: Amelia

Hi jessica! Yes, your situation is very unusual. The general rule of thumb is that 90% of the time, pregnancy is not covered under ADA — even pregnancy complications that require bed rest for months. Frankly, when we researched your question, we were surprised to learn that your condition might be covered, as long as it lasts (or is expected to last) at least 6 months. So you may have to be tactful but persistent in getting the employer to see it your way. (You may want to be proactive by contacting the EEOC at http://www.eeoc.gov now to learn more about hyperemesis and ADA.)
The fact that the company has given other employees short term disability leave is heartening. However, usually even a company that gives short term disability leave grants it concurrently with FMLA. That usually means that while an employee may be entitled to 3 months of FMLA or 3 months of short term disability leave, they are not entitled to 3 months of FMLA and then 3 additional months of disability. So you may want to double-check company policy on that.
However, if an employer offers paid or unpaid short term disability for other medical reasons (like a heart attack or stroke) the employer must also offer this benefit to employees on pregnancy disability. (Note that this applies only to the time you are medically unable to work — usually 6 weeks after a normal delivery.)
An employer can have different policies for employees who are injured at work and those who are disabled for other reasons. And an employee who is working (on light duty) is by definition not on short term disability or FMLA while working. HTH, and thanks for reading the blogs!~ Amelia
Posted by: jane

hi i am currently on fmla intermittent leave for pregnancy and severe morning sickness. my employers call in procedure is one hour before the start of shift to report an absence. most days i am able to call in the hour prior but some days the sickness is completly unpredictable where i will feel fine get up and get dressed for work and then vomit everywhere and have to call in like 30 minutes late. my employer sent me a notice saying that im not complying with company procedures and that i could be disciplined is this true. i cant help i cant control what time i might get sick but i always call in that same day whether it is late or early. i understand that most companies need to know in advance because of staffing issues but even if i call in on time to report an absence they wouldnt be able to find someone to replace me anyways because we dont have replacements. owe by the way one morning i thought i felt fine so i showed up for work but before i could get out of my car and clock in i threw up all over the parking lot in front of my supervisor and i could barely move enough to call the front office to tell them that i was out front on time but was to sick to come in and that i was going to go back home and my employer said to me i might get written up for calling in late for that!
Posted by: Amelia

Hi Jane! This is a tough call. Generally, an employee on intermittent FMLA is required to follow the employer’s usual reporting policies. In your case that means calling in an hour before your scheduled shift. However, the 2009 FMLA regulations do include an exception when the employee is physically unable to call, or when the absence is unpredictable. An employee who was in a coma would be an example of someone who was unable to call — so that really doesn’t apply to you. However, in some cases your condition is unpredictable and you may not know in advance that you will be ill — as in the example, when you got sick in the parking lot.
Explain this to the employer. If they write you up for not reporting properly in this situation, the contact the US Department of Labor at http://www.dol.gov to file a complaint about being denied your rights under FMLA. HTH, and thanks for reading the blogs!~ Amelia
Posted by: susan

hi Amelia i have a question about wage pay. my employer request that we clock in at least one minute before the start of shift but no earlier then 12 minutes. and clock out no later then 12 minutes after the end of shift but doesnt pay us for those extra minutes. if i were to clock in on time which would be 6:00 am i would be considered late and deducted from my pay and written up for clocking in late. is this legal? i do security work so i have to relieve a person from their post before they can clock out so i liiterally have to clock in early otherwise they would be clocking out late. most of us get to work 10 minutes early and clock in and go to work right away but we dont get paid for those ten minutes we just get paid for the 8 hours we worked even if it was 8 hours and 10 minutes. i think they try to compensate by giving us a 20 minute lunch break without having to clock out but ive been here 2 years and have yet been able to take a lunch break because we have to many people working and are only allowed to eat one at a time plus we are on call during lunch so if something were to happen we have to leave lunch and respond to the call.
Posted by: jeanette

Hello. i just recently found out i am 15 weeks pregnant but after having major knee surgery plus recovery i have completly exhausted my fmla leave time and vacation time. my employer does however offers leave without pay which must be granted at the discretion of the program manager and also a leave of absence for up to 90 days if the work load permits. my question is if i know that they have allowed others to request these leaves and accepted them would they be able to deny my request for the same? ive worked for this company for 3 years and my first year i was in a car accident and was out of work for 60 days and they never fired me or even told me what my leave was considered but i know it wasnt fmla because i didnt qualify yet so im assuming they gave me a leave of absence. as well with a woman who had cancer she didnt qualify for fmla but she was out for 60 days and they didnt fire her either they just requested a doctor’s note from the both of us stating we were released and able to return to work. the only reason i think they would deny me is because we are short staffed but obviously i have to recover from child birth and i dont want to lose my job.
Posted by: Amelia

Hi susan! It is completely legal for the employer to require you to report to work at 10 minutes before the hour. However, under both federal and Florida minimum wage laws, the employee must be paid for all the time worked. Suppose Diane clocks in at 10 minutes before 6 am and clocks out at 2 pm. Diane must be paid for 8 hours and 10 minutes of work. (Under federal law, the employer is permitted to round to the nearest 15-minutes. In that case, Diane is entitled to payment for 8.25 hours.)
Generally, the employer must pay workers for all the time they are required to be on company premises. So if you are required to clock in 10 minutes early and clock out 10 minutes late, you are entitled to payment for that time. If that puts you over 40 hours in one payroll period, you are entitled to overtime. The employers meal break policy has no effect on this law.
Unfortunately, Florida has no state agency that enforces the state minimum wage law. Your best bet is to keep a written record of your hours for several pay periods and file a wage complaint with the US Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Amelia

Hi jeanette! We wish we could offer more encouragement, but leave without pay at the discretion of the program manager means exactly that. The program manager can say “yes” or “no”. And she can say “yes” to one employee but “no” to another, as long as there is a valid business reason for making that decision. In this case being short staffed is a valid business reason.
The same goes for “a leave of absence for up to 90 days if the work load permits.” The employer can easily say that at this point, the work load does not permit. If the employer denied an employee leave based on the employee’s race, color, religion, sex, national ancestry, etc., that would be illegal discrimination. However, the employer could lawfully deny the leave based on legitimate business reasons.
The bottom line: This employer has been very generous in granting unpaid leave to workers in the past, and they may well do so for you. However, they are granting this leave out of the kindness of their hearts. There is no law that they must grant additional paid or unpaid leave. They could very well jus tterminate you when you have to take time off for childbirth. Our suggestion is that you speak to your supervisor ASAP, and offer to train someone to fill in while you are gone. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Nicole

Message
Questions??

I am 35 weeks pregnant and have been at my job for 7 months. Since I have not been at my job for a total of 12 months I have been informed that I am not entitled to 12 weeks FMLA but I am eligible for 6 weeks unpaid medical leave. I asked if I was out for 8 weeks medically ordered what would happen and was informed that if I don’t come back after 6 weeks they would terminate me and hire me back. Makes no sense to me. Also does anyone know of any kind of short term disability or anything that can be applied for since I will be taking unpaid leave? I appreciate any advice!
Posted by: Amelia

Hi Nicole! Actually, your employer is being very generous. Under state and federal law, if you do not qualify for FMLA, the employer doesn’t have to give you even one week of unpaid medical leave. They could terminate you after just a few days of absence.

The employer is also being very generous by offering to rehire you. They are under no obligation to do so.

Florida does not offer any paid short term disability, so unless you were covered by disability insurance when you became pregnant, your leave will be unpaid. You may qualify for TANF, Temporary Assistance for Needy Families (formerly called welfare) or for food stamps. And, of course, the baby’s father is legally and morally obligated to support the child. HTH, and thanks for reading the blogs!~ Amelia
Posted by: susan

in response to my earlier question about overtime pay, so if my employer REQUIRES us to clock in at least 1 minute before the start of shift then my employer is obligated to pay us for this time? what if we dont actually start working until 6;00am on the dot? i also dont completly understand time rounding either. my employer state that if you clock in at 6:00am on the dot which is suppose to be the start of shift then you are considered late and deducted 1/10th pay is that legal? i dont think my employer is rounding time properly or even at all because we must clock in early up to 12 minutes whether we are waiting to work or actually start working but clocking in 13 minutes would be considered un authorized overtime. if this is the case we should be able to clock in a 6:00 am on the dot as well correct? even if the employer is rounding time that would mean anything up to 12 minutes before 6 is considered 6am but i always clock out of work around 2:08 pm because i have to be relieved from my post since we are security guards, so wouldnt that mean 2:08 should round up to 2:15 or something? the employer isnt rounding correctly then because i only get paid 8 hours and im never late to work. i clock in 5 minutes early every day and 8 minutes late every day but every pay check is exactly for 40 hours. is it possible my employer is considering this extra time de minimis even though im still working until i am relieved and then have to walk to the main office to clock out?
Posted by: Amelia

Hi again susan! We’ll try to make this as clear as we can for you.

1) The employer can require that you come to work at any time they say. They can require that you come to work at 12 minutes before the hour, or 10 minutes before the hour, or 7 minutes before the hour. There is no law that a shift must start on the hour exactly. If the employer wants to count you as “late” when you clock in exactly at 6 am, the employer can do that.

2) However, you must be paid for the time you are on the clock.

3) Any time you are required to be on the employer’s premises is “work time” under the federal minimum wage law, the FLSA. So if the employer requires you to clock in 10 minutes before the hour, and stand around for 10 minutes, you must be paid for that time. The concept of “de minimis” really does not apply in this context. While you are getting the radio, checking the radio and walking to your work station, you are working, under federal law. Even if you literally just stood there waiting to relieve another employee, unless you are free to leave the premises, you are working under the law.

3) It also sounds to us like your employer is not rounding time properly. There are several different ways to round time under the law. Many employers round to the nearest 1/10th of an hour. Some round to the nearest 1/4 of the hour. Some do not round at all. All are lawful. But, the crucial factor is that rounding must benefit the employee as often as it does the employer. If it always benefits the employer, it is not lawful rounding. They can round 6 minutes before 6 am to 6 am…but then they have to round 9 minutes after 2 pm to 2:15 pm.

4) It sounds like your employer just pays every employee for 8 hours, regardless of how much time they are on the clock. This is a violation of federal and Florida minimum wage laws.

5) The best action for you to take is to keep written records of the times you clock in and out for several weeks. Then, if you are working 40.25 or 40.75 hours in the week, and only being paid for 40 hours, you should file an overtime complaint with the US Department of Labor at http://www.dol.gov. Sorry, but we just can’t explain it any more clearly than that. HTH~ Amelia
Posted by: susan

thank you amelia for the extra detailed response i guess thats exactly what i needed. i was certain my employer was breaking the law but i just wanted i guess a little reassurance that i was correct lol. also i am very nervous about filing a claim since this is a giant company and may have to back pay over a million dollars to its 1200+ employees for this practice. although the company has no reason to fire me i have a feeling all of a sudden i will be lol. but at the same time at least some one would have finally spoken up about the practices of this company because everyone complains but no one ever takes action. thanks again.
Posted by: Amelia

Hi susan! Actually, we are happy to hear that this is a giant company with 1,200 affected employees — that makes the case even more attractive to the US Department of Labor. In a case a year or two ago, the DOL forced a Pennsylania factory to pay workers more than $1 million in back wages, overtime, plus penalties and fees. The factory required that employees show up 15 minutes before the shift to change clothes, but did not pay them for that time. So there is ample legal precedent here. (If you search the archives, I wrote a blog post about that case at the time.)

Just so you know, it is illegal for an employer to retaliate in any way against an employee who files a wage complaint in good faith. Even if it turned out that the wage complaint was unfounded, it would be unlawful for the employer to “invent” a reason to fire you. If they take such an action, you should report it to the US Department of Labor as well. They will investigate it on your behalf, and file a lawsuit for you if necessary. All of this is at no charge to you. (Typical settlements for retaliation are in excess of $100,000.) Feel free to post any additional questions you might have, and let us know how this works out. HTH, and thanks for reading the blogs!~ Amelia
Posted by: jamie

hi! i am currently on fmla leave for pregnancy/pregnancy complications and i worried about not having enough leave time since i had to use it earlier this year for a surgery and it left me with less then half the amount of time ie 2 weeks leave. what if my doctor wont release me to return to work because its too soon and i run out of days? in my employee handbook it states that if you dont return to work once fmla leave expires then its considered a voluntary resignation. will i be able to file for unemployment on a voluntary resignation if they fire me because i couldnt recover in time from a c section? how can this be considered voluntary? also i have spoken with my employer and they are unwilling to grant me even 1 extra weeks time since they dont have to which i understand i just am really concerned about my employment status?
Posted by: laura

hi i was recently laid off from my job/downsizing and im applying for unemployment. i really want to go back to school full time to get a better career so i wanted to know if i collect unemployment can i go to school full time? i suppose the rational thing to do would be try my best to find a part time job and go to school full time but even McDonalds wasn’t hiring last week when i checked lol. if i go to school full time while on unemployment will i still have to look for employment etc?
Posted by: susan

hi Amelia thank you for your last post! i should probably get a lawyer or something but this site is so helpful i feel like i can do all this stuff on my own with the great advice you give! much appreciation! i wanted to know if my employer offers to pay me my back wages can i decline and pursue for a class action instead? i want the other people at my job to be able to collect their hard earned wages as well. i filed a claim with dol so i dont know if i should have just gotten an attorney instead. can i close my claim with dol and go the court route? i really guess dol is doing there job because my boss came to me the other day and closed the door and asked me what it would take to keep my mouth shut lol he tried to offer me some money to drop the whole thing lol. i told him it would cost 100,000 plus my back wages for me to drop my case obvioulsy i was joking but i think he took me serious because a few days later he came back shut the door and told me if they paid me that amount they also want me to resign lol! whoa just got in way over my head! this deal cant really be negotiated can it? i mean thats more than i make in 5 years and it would be nice to take a brake from working lol but i want to do the right thing by my fellow employees who are too scared to speak for themselves.
Posted by: Amelia

Hi jamie! Unfortunately you will probably run out of FMLA leave, if you only have 2 weeks of leave. Usually the doctor will not release a patient to return to work for 4 to 6 weeks after a normal delivery, and 8 weeks after a c-section. It sounds like you will easily exceed that.

You are right that no matter what your employer considers it, if you are physically unable to return to work after your FMLA, that is an involuntary separation. (After childbirth up to 60% of new mothers choose not to return to work, even though they are physically able to. That is probably what your employer is talking about when they mention “voluntary separation.” Or, they could simply be attempting to avoid paying unemployment.)

In order to qualify for unemployment benefits, an employee must be a) physically able to work and b) actively looking for work. Suppose that Tina exceeds her FMLA after childbirth and is terminated by the employer. Tina will not qualify for unemployment benefits immediately, because she is still physically unable to work. However, once Tina’s doctor releases her to return to work (if the employer has no job for Tina) then she will qualify for unemployment benefits.

So once you are released to return to work by your doctor, if the employer does not put you back to work, you should apply for unemployment. If it is denied, you should appeal the decision. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Amelia

Hi laura! We appluad your ambition to take classes so you can get a better job. Yes, unemployment benefits are only available to a worker who is actively looking for a job. In many states, they can be denied if the employee is not available for job interviews during the day (for example, because the employee has classes.) The unemployment agency has the right to call you on short notice and demand an in-person interview, to check up on this. You could certainly take a few classes in the evening, but if you are not looking for work or not available for interviews, then you do not qualify for unemployment benefits. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Amelia

Hi susan! First, we need to say that this site is not a substitute for an attorney — we don’t give legal advice. Second, we applaud the fact that you are trying to do the right thing, by making sure that your coworkers receive the money they are owed, as well as you. Kudos!! The world needs more people like you.

Here is how the process normally works: You file a wage complaint with the US DOL. They investigate it — they have the right to look at all the employer’s records for all employees for the past 3 years. If the DOL finds that there is evidence of a problem, they will file a suit on your behalf. (There is no fee for this — it is paid by taxes.) The suit may also be on behalf of any additional affected employees — which sounds like a lot of people. Most of the time, the employer settles out of court by paying back wages to all the employees, plus interest and penalties.

However, if an employee has already filed a suit against the employer before the DOL does so, he or she will not be part of any suit that the DOL files — and he or she will have to pay his/her own lawyer. To be fair, we have to say this: sometimes the DOL settles a case for less than each employee is owed. Maybe each employee would be owed $3,000 but only receive $2,500. If you are part of the class action suit, the DOL can make this decision for you. However, you can withdraw from the class action suit at any time before it is settled — so this isn’t a decision you have to make right away.

The first thing you should do is contact the US DOL and let them know that the employer is offering you a settlement. It sounds like at this point you are thinking of refusing the settlement, for good reason. If you accept it, this company continues to treat the other 1,199 employees unfairly, and those employees never receive back wages unless somone (like you) has the courage to stand up to the employer. (The DOL can’t sue for a wage claim, unless an employee complains.)

At this point, you should not accept back wages from the employer. If they offer to pay back wages, tell them to talk to the DOL. Don’t take anything and most importantly, don’t sign anything at this point.

If you are seriously thinking of taking the settlement, then you definitely need an attorney who specializes in employment law. The fact that the employer has already agreed to $100,000 probably means that they are willing to pay two or three times that, to make this problem go away. And they should be — with 1,200 affected employees, this could add up to $3 million dollars in back pay, plus penalties and interest, not to mention what the employer will have to pay in lawyer’s fees. So paying you $100,000 is actually a big savings to them. They may also be willing to negotiate other items, like you continuing to work there.

If you decide to talk to a lawyer, be very, very careful which lawyer you allow to represent you. (Right now, with an offer on the table already, you are a dream client.) Interview a few people before you decide on an attorney. Many lawyers are very agressive people who only care about getting the most money for their client — and not about seeing that justice is done for all the other workers. Find a lawyer who understands that both of those factors are important to you and who strikes you as an honest, ethical person.

Of course, the best of all possible worlds would be if you received a nice settlement, and then another employee filed a complaint with the US DOL so the class action suit could go ahead. (It might be handy to have the home phone number of a few of your coworkers, right about now.) Kudos to you for following through! And feel free to ask any additional questions you may have. HTH, and thanks for reading the blogs!~ Amelia

P.S. And while we’re giving free advice, if you do receive a settlement, take 6 months or so off. But spend the bulk of the settlement buying a home, or paying off your mortgage if you’re currently a homeowner.
Posted by: susan

lol thanks for the great advice AMELIA! i have a lot of plans on how to maximize the benefits of that amount of money well whatever it would be after taxes of course! that is kinda what i had planned with getting a settlement and then having another co worker file a claim as well just so they learn their lesson! i will keep you updated and thanks again!
Posted by: Amelia

Hi susan! Thanks! Best of luck to you, and please do keep us posted. You go, girl!~ Amelia
Posted by: stephanie

hi i had a question about unemployment claims. ive been on intermittent fmla leave my whole pregnancy due to complications and my leave time has run out. my employer hasnt fired me yet but i know its coming. im missing like 2 work days a week right now so i guess when i show up for work they will fire me since my time has been exhausted. can i collect unemployment once im fired. does it matter that my fmla leave was intermittent for preg complications and pregnancy? i havent given birth yet either so i know i cant collect ui during those 4 weeks but what about before then? im willing and able to work i just get really sick sometimes so if i was collecting ui and i got sick during the week i wouldne be able to collect that week im assuming. will i have to provide a doctors release? what does the release need to be for? for pregnancy or for my complications? how can i get a doctors note to release me for complications that come out of nowhere ie morning sickness etc. will my employer try to fight my claim? my employee handbook states if you dont return from leave then your considered voluntary resignation starting back from the date i put in for fmla leave. can they do that?
Posted by: Amelia

Hi stephanie! The not returning from leave = voluntary resignation does not apply in your case. They are referring to a new mother on continuous FMLA who decides to stay home with her baby, rather than return to work.
The employer can legally fire you, and you may qualify for unemployment benefits if you are physically able to look for work. If you are not able to look for work due to your condition, then you will not qualify for unemployment.
Many employers routinely deny all unemployment claims. If your claim is denied, you should appeal that decision. HTH, and thanks for reading the blogs!~ Amelia
Posted by: linda

Hi, im 30 weeks pregnant and my company does not pay maternity leave. Im not sure if ill be able to get back to work once I have the baby but Im affraid to let them know now because i need the insurance during those 8 weeks that im planning to take off without pay after i have the baby. any advice?
Posted by: Amelia

Hi linda! Yes, we do have information for you. Usually maternity leave in Florida is granted under federal FMLA. You should be aware that if you do not return to work, the company can require that you repay their portion of the insurance premiums for the time you were on FMLA. If the company is paying $200 every two weeks for 8 weeks to cover your insurance (and you are paying the other $200), then they can require you to pay $800 back, if you never return from FMLA.

Many employees are surprised to learn that the employer is paying 40% to 60% of each health insurance premium, so the amount owed can be quite substantial.

If you tell the employer you do not intend to return to work after the baby is born, they can terminate you. If the company has 20 or more workers on the group health insurance plan, you may qualify for COBRA. If not, you could very well be without health insurance at this critical time. Our advice is that you tell the employer you will return from FMLA, and that you follow through and work at least a week or two after your 12 weeks of FMLA end. HTH, and thanks for reading the blogs!~ Amelia
Posted by: tiffany

hi i am 3 months preagnant and i was talking to my boss about leave in july once i have the baby he said we do not have maternity leave with our company and we have no vacation time basicly if you dont work you dont get paid and i cant afford my bills if im not working and im not sure how to look up any laws because we are based out of new jersey but my facility is in florida at my facility there are about 20 employees off season (sept – jan) but from feb – august there are a few hundred please help
Posted by: Amelia

Hi tiffany! We have good news and bad news for you. Your employer may be covered under the federal FMLA, the Family and Medical Leave Act. That law applies to an employer who has 50 or more workers for at least 20 weeks of the year — which applies to your employer in season. The FMLA entitles an employee to up to 12 weeks of job-protected leave in total for a variety of reasons including pregnancy, childbirth and baby bonding. So the good news is that you may be entitled to FMLA. This is the program most women mean when they refer to “maternity leave.”
The bad news is that FMLA is unpaid. Only about 20% of U.S. employers offer paid maternity leave, and there is no federal law that they must do so. So while you will have a job to return to afterwards, you will not have any income while on maternity leave.
Five U.S. states including New Jersey offer short term disability benefits, that provide partial income replacement during the time you are physically unable to work (usually 4 to 6 weeks.) However, Florida does not offer any such benefit and as an employee working in Florida, you are not entitled to New Jersey benefits — even though the company is based in New Jersey.
As far as paying your bills, the baby’s father is legally and morally responsible for helping you financially, including paying child support. If you have not taken steps to ensure your child’s future by collecting child support, you should do so now. The only other suggestions we can offer are that you apply for food stamps and TANF, Temporary Assistance for Needy Families, the program formerly called welfare. You can also dial 211 from any landline (not cell phone) in the U.S. for info on social services in your area. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Tiffany

Amelia thanks for the info i appreciate it my company does offer short term disibility and long term disibility but i didnt know that having a baby fell in that catagory
Posted by: Amelia

Hi Tiffany! That’s very good news! Most short term disability plans pay a portion of the employee’s usual income, such as 50%.

Usually the mother is disabled (that is, physically unable to work) for 4 to 6 weeks after childbirth. After a c-section, the mother is often on childbirth disability for 8 weeks or more. The mother may also be physically unable to work for about 4 weeks prior to the baby’s birth, depending upon her pregnancy and the type of work that she does.

In Florida, childbirth disability counts as a portion of FMLA. Many mothers take 6 weeks of paid childbirth disability, plus another 6 weeks of unpaid FMLA leave for baby bonding to total their 12 weeks. Other employees should note that usually the mother must qualify for disability insurance or an employer’s disability plan before becomming pregnant. HTH, and thanks for reading the blogs!~ Amelia
Posted by: jessica

hi Amelia i posted a few earlier questions regarding ada disability after fmla for hyperemesis. well finally after exhausting my fmla due to the condition i resubmitted a request for an accommodation for additional lwop up to 280 hrs ending march 8th which would cover me right until the birth of my daughter. since i havent really been able to return fully from fmla leave i have missed days here and there etc i have used 80 hrs over my fmla as of dec 20 2009. i received a letter today saying the will grant me additional intermittent leave up until january 31 2010 even though my request was for march 8 2009 and for 280 hrs. they stated on january 31 we will have a meeting to discuss whether or not i need even more time and well as i have no issue with this it states in the note that they are also requesting medical certification. well they didnt tell me what kind of certification let alone they have been aware of my condition since june 2009 when i turned in my fmla certification paperwork and the condition hasnt changed. it doesnt interfere with my work performance when im there and i wouldnt be considered a threat since its not contagious and the fact that they are granting me the leave is proof they had knowledge of the condition. so since clearly it wouldnt be work related can they even request a certification from me? i have no issue providing this from my doctor i just want to make sure they are obeying the law as well.
Posted by: Amelia

Hi jessica! This is completely legal and sounds reasonable to us. It is routine for the employer to require certification of any serious health condition. Many women do recover completely from hyperemesis in the later stages of pregnancy, so the employer is simply being prudent. They have granted the leave under ADA until January 31, 2010. At that point, they will have another meeting about it and presumably grant more leave, while requiring additional certification.

Even people with a permanent disability like blindness or being confined to a wheelchair often have to provide certification.

The employer’s fear is that an employee could completely recover from hyperemesis, and continue to take the leave without pay. Obviously, the employer wants to protect themselves from that — which is entirely reasonable. After all, not even your doctor can say for a fact that the condition will continue until your baby is born. The certification they are looking for is probably identical to the FMLA certification — but just to be sure, ask them for a form.

We will note that babies don’t always arrive on time, so for your next request if your baby is due on March 8, you might request intermittent leave until March 31, or the baby’s birth, whichever comes first. HTH, and thanks for reading the blogs!~Amelia
Posted by: jessica

hi Amelia in response i totally agree it is resonable but my issue is that they already have my condition on file since june 2009 per fmla certification for disorder/pregnancy and it hasnt changed. i was concerned because what i read on ada disability was that the employer was allowed to request medical certification if the need for an accommodation wasnt obvious. well i have missed a total of 560 hrs for my condition that they clearly know about and they have granted me additional leave for the condition which would prove it is obvious and that they know about it not to mention my original request for an accommodation back in october specifically stated what the condition is what major life activies it limits and the type of accommodation i needed. i dont have any issue providing a certified one from my doctor for this but i cant help but think back when i request fmla i had to notify eeoc because they gave me such a hard time about it and i feel like why are they requesting for information they already have. they have already told me they will not give me additional leave for the birth of my child which is fine since i have run out of fmla days and their fear of my condition resolving but i continue to take leave is unwarranted since clearly i cant use the leave for having my baby i wouldnt be able to call out of work for the condition and then return with a flat stomach lol
Posted by: Amelia

Hi jessica! Yes, but your situation is slightly different from most disabilities, because you will make a full recovery at some point. It is obvious to the employer that you had hyperemesis in the past. But often women do recover from hypermesis in the later stages of pregnancy. So your condition could magically disappear in the 8th or 9th month. Not even your doctor can say for sure that it will continue until delivery. So while it is obvious that you HAD hyperemesis, it is not at all obvious that you STILL HAVE hyperemesis, and it is entirely reasonable for the employer to require certification.

No, you could not use this ADA leave for childbirth and baby bonding. But you certainly could recover from hyperemesis and just be hangin’ out at home while you were perfectly healthy. We don’t really think that you are doing that, but we think it is reasonable for the employer to have independent certification that your condition continues.

If the employer did not require certification, they would just have to take every pregnant woman’s word for the fact that she had hyperemesis. Continued certification is quite common when an employee has a condition that can improve with time. This is not like being a double amputee, where once your legs are gone, they are never going to grow back. You are going to fully recover at some point, and the employer has the right to know that you have not yet reached that point.

The employer is being fair by granting a reasonable accommodation under ADA for a disabled employee, but you must show them that you are a disabled employee. We understand that you are frustrated because you had to contact the EEOC to get this leave in the first place. But now that the employer is being reasonable, you should be reasonable, too. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Christopher

Hi Amelia my wife is 7months pregnant, We are aware about her 12 weeks vacation but, we are not sure if is she gonna get paid with those week off. Her company is small about 20 emplyee but have a sister compny in New York which is bigger? Is she qualified for FMLA if she give birth? Thank you for your help. God Bless
Posted by: Amelia

Hi Christopher! The good news is that you are about to become a father. The bad news is that your wife will probably have no income while she is off work. Just to clarify, FMLA is unpaid. That law allows new mothers to take up to 12 weeks off in total for pregnancy, childbirth and baby bonding — but all of that leave is unpaid. (FMLA guarantees that your wife will have a job when she returns — it does not pay her while she is off.)

Unfortunately, FMLA covers only employers with 50 workers within 75 miles of the location where your wife works. Since New York is more than 75 miles from Florida, your wife is not covered by FMLA.

Some states have a family leave law that covers smaller employers. Florida does not.

So it is likely that your wife will lose her job when she has to take 4 or more weeks off after the baby is born. There is no state short-term disability program in
Florida that would pay her for this time (as there is in a few other states.) Once your wife is physically able to return to work, if the employer has no job for her, she should qualify for unemployment benefits. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Martha

Hi
I lost my job back in April 2009 and had returned from maternity leave on November 2008. Before leaving on maternity leave I was told by the HR director 2 things: 1) if i was told by the DR. o be in bed rest for 2 weeks prior to my due date, it would interfere with my maternity leave meaning that I would have 2 weeks less to be with my baby and 2) that I would only be paid (full salary by the company) for 1.5 month and with the other remaning 1.5 (Family act) would not be paid. For the 12 weeks that I left i got paid fully but once December came in the HR director said she had made a mistake by paying the whole 12 weeks. So they did not pay me the month of Dec 09.

I just found out:
a) that if your DR does put you in bed rest, these weeks taken off SHOULD NOT be taken off your maternity leave ( that should be short term disability)
b) i just found out the the HR director has 12 week payment to 2 other girls that gave birth a month after I was let go.

I now they work with [insurance company name deleted] and they are the [employer name deleted], a cosmetics company ( Corporate Offices in Miami) we did have more the 70 employees.

How can this be???? Is there anything i can do?

Thanks
Posted by: Amelia

Hi Martha! The information you were given about short term disability is only partly correct. First, there is no law that any employer in Florida must pay workers who are on maternity leave — and 90% of employees are not paid. So the employer was very generous to pay you for part of the time you were on maternity leave.

Employees are entitled to up to 12 weeks of unpaid, job-protected time off under FMLA, the federal Family and Medical Leave Act. However, FMLA runs concurrently (at the same time) as short term disability and/or paid or unpaid maternity leave. So you were entitled to 12 weeks off work, period. Time on bed rest and even time off to attend prenatal doctor’s appointments counts as part of the 12 weeks.

Suppose Cindy works up until the day she goes into labor. Cindy is entitled to 12 weeks off under FMLA, after the birth of her child. Now suppose Tina’s doctor puts her on bed rest 2 weeks before her due date. Tina is also entitled to a total of 12 weeks off under FMLA, meaning 2 weeks before her baby is born and 10 weeks afterwards. If Tina takes one day longer than that, her employer can terminate her. The bottom line is that if you were off work for 14 weeks total, the employer did not have to take you back, and was very generous to do so.

It sounds like the company had a policy of paying for 6 weeks of disability. So starting your disability 2 weeks earlier would just mean that it ended 2 weeks earlier.

Some states provide short term disability for all employees. Florida does not. If you were covered under private short term disability insurance at the time, then you should have received payments from them for the 2 weeks prior to birth. Usually, short term disability payments are about 50% of your salary. However, if you failed to file an insurance claim in November 2008, it is probably too late to do so now. (You would not receive short term disability payments while the company was paying you full salary.)

The employer can offer different benefits in different years, such as paying 6 weeks of maternity leave to employees who go on leave in 2008 and 12 weeks of paid maternity leave for employees who begin that leave in 2009. An employer can also offer different benefits to employees in different jobs, such as 12 weeks of paid maternity leave to exempt employees, and 6 weeks of paid maternity leave to hourly employees.

If your employer offered better benefits to workers who are a different race, color, religions or of a different national ancestry than you, that may be illegal discrimination. You could file a complaint with the EEOC at http://www.eeoc.gov. But frankly, this doesn’t look like discrimination to us.

You are unemployed. Our suggestion is that you file for unemployment (if you have not already done so) and focus on finding a new job, rather than pursuing this claim. It appears that the employer was more than fair when you took leave for childbirth.

We will say, that any employee who is considering starting a family, should investigate exactly what benefits the employer offers, before becoming pregnant. Any employee who is thinking of becoming pregnant, should sign up for short term disability insurance if she has that option. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Jason Miranda

I have a question. My wife when on maternity leave and the employer she works for changed schedule to hours she can’t work. Can they do that?
Posted by: Amelia

Hi Jason! The relevant law here is probably the federal FMLA, the Family and Medical Leave Act. Under FMLA, an employee is entitled to up to 12 weeks of unpaid leave, and must be returned to her job afterwards. If the employer changed the schedule because your wife was on maternity leave, then no, they probably cannot do that. However, an employer can take any action against an employee that would have been taken anyway, if the employee were not on FMLA. So if everyone’s schedule has changed, then this is legal. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Shane

Hello,

My wife and I just had our first child and she works for a private company here in Florida. She was given just given only 6-8 weeks of unpaid maternity leave. It seems like a pretty bad deal. Also, they’re asking her to pay a ridiculous amount for her insurance over the couple months she has not work and are not covering the amount they normally do requiring her to pay the whole thing. Do you have any suggestions we might try to lenghten and/or get any pay during her leave? Or is it OK since they are a private company?
Posted by: Amelia

Hi Shane! We are going to guess that your wife works for an employer with less than 50 workers within 75 miles. Under the federal FMLA, the employer has to give an employee up to 12 weeks of unpaid leave for childbirth and baby bonding. In addition, during that time the employer has to continue to pay the employer’s portion of the health insurance. But that law only applies to employers with 50 or more workers.

Several states have similar laws that apply to smaller employers, but Florida does not. In fact, Florida offers fewer protections to workers than almost any other state. Sorry, wish we could help. ~ Caitlin
Posted by: Toya

I found out I was pregnant when I was out on FMLA for depression. I had been on FMLA for six weeks. After going to the OB, he decided to keep me on bed rest due to clotting and spotting. I informed my employer and they told me after the 12 weeks were up there’s nothing else they can do for me; except terminate me. I was getting short term disability but I don’t know if that will continue once my employer terminates me. Is there anything I can do to stop my job from terminating me? If not, will I be able to collect unemployment? I am currently 10 weeks and believe I will be on bedrest the entire pregnancy due to other complications.

Also, when I went out on FMLA, my employer called my attending physician and asked if he would approve for me to come to work for 1 day to show my duties to another co-worker. I had no idea they contacted my doctor and asked his permission for me to come in for 1 day; while on FMLA. Is that legal or is that a violation of my privacy. I did not sign anything giving them permission to contact my doctor. Can I do anything regarding that? I thank you in advance for you assistance and help.
Posted by: Amelia

Hi Toya! Congrats on your pregnancy! Sorry that it is a difficult one.
Unfortunately, there is no Florida or federal law that would prevent you from being terminated once your 12 weeks of FMLA are up. You would only be able to collect unemployment if you were physically able to work and were actively looking for a job. So until your doctor releases you to go back to work, you will not be eligible for unemployment benefits.

Whether or not you will continue to receive short term disability benefits depends upon who is currently paying them. Florida has no state-wide short term disability benefits. If your employer is paying these benefits, they will end when you are terminated. If you are being paid through an insurance policy, they will likely continue for 12 or 26 weeks, depending on the terms of the policy.

Because you will be unable to work for 5 months or more, you may qualify for permanent disability benefits from Social Security. Contact them ASAP — the benefits begin the day you apply. If you delay applying, you lose money. In addition, the baby’s father has a moral and legal obligation to help you financially. If you have no other resources, dial 211 from any landline phone for info on services in your area.

Under FMLA, an HR person or upper management has the right to contact your doctor without your permission, for more information on your condition. However, your immediate supervisor is prohibited from contacting your doctor. In addition, the employer is not allowed to badger the doctor about allowing you to return to work — and it sounds like this is exactly what the employer did. You should report this violation to the U.S. Department of Labor at http://www.dol.gov. They enforce the laws regarding FMLA. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Sadie

My employer for the past 9 years (company has over 400 people) allows 6 weeks unpaid maternity leave, which includes covering our health insurance benefits. They have no problem with me taking an extra 6 weeks, but say that I will have to pay the insurance premium for those extra 6 weeks. Does the FMLA cover 12 weeks of unpaid leave BUT require the agency to cover the benefits? That was how I interpreted it, but my agency is telling me differently.
Posted by: Amelia

Hi Sadie! No, your agency is correct. The FMLA requires that an employee be allowed to take up to 12 weeks of leave, and return to her job afterwards. The FMLA is unpaid, although your employer is generously offering to pay you for 6 weeks.

Under FMLA the employer must continue benefits, including group health insurance, on the same basis as when the employee was working. This means if you were paying $200 each payperiod for group health insurance while working (usually as a payroll deduction) you must pay the same amount while on FMLA. If you did not pay this amount, the employer could legally cancel your group health insurance. (If the employer pays 100% of the health insurance premium while you are working, they must continue to do so while you are on FMLA.) HTH, and thanks for reading the blogs!~Amelia
Posted by: Mary1234

Hi! I’m 28 weeks pregnant. My expected delivery date is August 20. I work for a company of more than 1500 employees, and I have worked for them more than 1250 hours. However, on my expected delivery date I will be with the company for 11 months. So, human resources told me that I have to quit because I am not elegible for maternity leave. Is that legal? Thank you
Posted by: Amelia

Hi Mary! The information you got from HR is not entirely correct. It is true that to qualify for FMLA an employee must have worked for the employer 12 months AND 1,250 hours in the past 12 months. You will only meet one of those requirements, so you are not entitled to any maternity leave or unpaid leave under FMLA. When you go on leave for childbirth, the employer can treat you like any other employee with an attendance problem. Usually that means after you use all your sick or vacation time and miss another week or two of work, you will be fired.

The inaccurate portion of this statement is that you have to quit. You are under no obligation to quit, and you should probably let the employer fire you. If you quit, you will not qualify for unemployment benefits, even after your doctor releases you to return to work. Usually if you are fired for absences, and you were physically unable to work, you do qualify for unemployment benefits once your doctor releases you to return to work. (Usually 4 to 6 weeks after a normal deliver, longer if you have a c-section.)

Many employees are terrified that being fired will ruin their career. This is not true. The average employee gets fired at least once in his life. In addition, this is the very best reason for being fired. When you are interviewing for another job, any reasonable person will understand that you had to take time off for childbirth but were not yet entitled to FMLA.

So yes, the employer can fire you when you have to take time off for the pregnancy or childbirth, if that time off exceeds their usual attendance standards. However, there is no law that you have to quit, and we do not recommend that you do. The HR department is telling you to quit because they save money if fewer employees collect unemployment. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Mary

Thank you very much Amelia for your fast response. So, I should go on for childbirth and wait for them to fire me. Does it matter that I don’t have a year with the company to receive unemployment? Sorry for asking so many questions, but I don’t have any idea of how those things work. Thanks again.
Posted by: Amelia

Hi Mary! You are very welcome.

Yes, you should continue to work until your baby is born, or until your doctor says that you need to take time off. Then write a letter or email to your employer, letting them know that you are on pregnancy/childbirth disability and when you expect to return. Be sure to keep a copy of the letter or email. This will not prevent the employer from firing you, but it will give you proof to show that you did not quit. Also get a note from your doctor.

Normally someone who has worked full-time for the past 9 months qualifies for unemployment benefits once her doctor releases her to return to work, if she has been fired. HTH, and thanks for reading the blogs!~ Amelia
Posted by: lilo

I am employee by the same company over 2 yrs. There are over 300 full time employees. I am 6 months pregnant and I am having complications consequently, my doctor is requiring that I visit every 2 wks. My employer has been giving me a hard time since I don’t have PTO or vacation time to cover the absences.

I was told that I would have to take FMLA which is only 12wks and would not leave me enough time to take care of my baby.

Can they force me to take FMLA or be terminated?
Posted by: Amelia

Hi lilo! Yes, the employer can force you to take FMLA or be terminated. In fact, even if you had PTO or vacation time, the employer could force you to use FMLA for prenatal appointments if they wanted to. The federal Family and Medical Leave Act provides for 12 weeks of unpaid leave, total, for all pregnancy and childbirth related absences, including baby bonding. A few states provide longer leave, but Florida does not.

This is a dilemma that most working women face. After childbirth, you will probably be physically unable to work for 4 to 6 weeks (longer if you have a c-section.) Theoretically, you could return to work at that point, although FMLA allows you to use any remaining FMLA for baby bonding.

If you refuse to use FMLA for your prenatal appointments, the employer can fire you for excessive absences. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Tami

when i go out for maternity leave i will lose all pay and health insurance coverage-is this legal for a company with only 10 employees? I know i am not eligible for FMLA but I need my insurance! I was given the option of paying 500.00 per mos to keep it while im out but with losing pay as well i cannot afford that. When i take my maternity leave (6wks is all that is allowed) i am still an employee so how can they take away my health insurance???
Posted by: Amelia

Hi Tami! Yes, this is legal. The employer is offering you the opportunity to extend your group health insurance coverage under the Florida state mini-COBRA law. However, to do so you must pay the entire monthly premium. (Normally, your employer pays a portion of the monthly premium. So if you pay $300 per month, your employer is paying $200 per month when you are working.) Even if you were on FMLA (which is unpaid) you would have to continue paying your portion of the health insurance premium. This situation is faced by pregnant employees of small companies in most states. (Also be aware that if you do not take the mini-COBRA, it may be a few months after you return to work before you have insurance coverage.) HTH, and thaks for rading the blogs!~Amelia
Posted by: Liliana

I work within the Human Resources Department. One of our employees is a young lady that is currently pregnant. She is unfortunately not performing as required. What type of reprecussions would there be if we terminate her?
Posted by: Amelia

Hi Liliana! You can expect the same performance from a pregnant employee that you would expect of any other employee with the same job. A pregnant employee does not have a disability and there is no law that requires you to modify your performance standards for her. Of course, if you took negative action against an employee because she was pregnant, that would be illegal discrimination under federal law.

If you have 50 or more workers, the employee may be entitled to intermittent unpaid time off under FMLA if pregnancy complications are interfering with her work performance. However, total FMLA is limited to 12 weeks for all reasons including pregnancy complications, prenatal appointments, childbirth and baby bonding.

In order to avoid discrimination, you should use objective standards for performance and document each time she does not meet your standards. You should also go through the complete disciplinary process including counseling the employee, a verbal warning, and 2-3 written warnings, before termination. For example, if the employee is expected to produced 10 widgets per day, and she only produces 8 widgets per day, you can issue a verbal warning one week, followed by a written warning the next week, etc.

Be sure to follow your normal disciplinary procedures. Any attempt to accelerate the process will be seen as pregnancy discrimination. This is a complex issue, so feel free to post any additional questions you might have. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Kim Raymond

Hi, we are a small, private company (5 employees). I have one employee that is 2 weeks into her maternity leave and another leaving on hers in two weeks. The employees were told that they would get 4 weeks, half pay, maternity leave. The girl that is out now mailed us a letter after she picked up her 2nd weeks pay check that she is quitting and would like us to mail her the last two weeks pay for maternity leave. Besides this being very inconvenient at this time are we required to send that to her? I know we are not required to offer maternity leave with or without pay, but am not sure as to this exact situation. Her letter states that she is terminating her employment as of this date. I have been researching Florida Labor laws, but nothing covering this type of situation.

Thank you for any info,
Kim
Posted by: Amelia

Hi Kim! In Florida as in other states, an employee can be required to repay any wages for maternity leave if she does not return to the job. In this case, you are absolutely justified in not paying this employee the remaining two weeks of maternity benefits. You offer maternity benefits only to current employees, and this person is not a current employee.

When an employee works, they are entitled to wages earned. However, these are not wages earned. They are a benefit that the employer is voluntarily providing, and as the employer you set the rules regarding these payments. It would be very foolish of you to pay this employee.

You are being more than fair as a small employer by providing paid maternity leave to employees. This worker is treating you in a very shabby manner. There is no reason to let her get away with this. HTH, and thanks for reading the blogs!~ Amelia

P.S. We have a special site set up to answer questions from employers like you at http://www.humanresourceblog.com. You may find it more convenient to post questions there.
Posted by: Kim Raymond

Thank you for your quick reply. I will check out your link.
Kim
Posted by: Amelia

Hi again Kim! You are very welcome!~ Amelia
Posted by: Mary

Hi Amelia! It is Mary again, I already had my baby, but the day before my C-section I went to work as normally and at the end of the day my supervisor wanted me to sign a termination letter. I refused to sign it. I asked her why I have to sign that letter if she a month ago told me that they will save the job for me. She said that in order to keep the job I have to sign. After that, a lady from human resources called me and asked me to sign and again I refused. Is all that legal? What can I do?
Posted by: Amelia

Hi Mary! Congrats on the new baby!! The “termination letter” may have actually stated that you were voluntarily quitting your job. The employer probably wanted you to sign it, so they could avoid paying unemployment benefits if they do not put you back to work. If the employer intended to hold your job open for you, or return you to work after your doctor releases you, no termination letter would be necessary.

We have a feeling that your employer is being less than honest with you. It seems that they wanted you to quit. We suspect that if you had done so, they would not have hired you back after your maternity leave, and you would not qualify for unemployment benefits. Unfortunately, many employers have no problem lying to workers if it will save them money on unemployment. If the employer truly intended to put you back to work after the baby was born, they would have no problem including that in the termination letter. Or, they could have skipped the termination letter altogether.

It is true that they probably won’t put you back to work if you refuse to sign the termination letter stating that you quit. It is also true that they probably never intended to put you back to work anyway. Let the employer know now, in writing, when you think you will be able to return to work. Keep a copy of the letter. If they do not put you back to work after your doctor releases you, file for unemployment benefits. And enjoy your time with the new baby! HTH, and thanks for reading the blogs!~ Amelia
Posted by: Mary

Thank you very much Amelia!!!
Posted by: Amelia

Hi again Mary! You are very welcome. Feel free to post any more questions you might have. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Jennifer

We live in Florida and my husband’s supervisor told him that he is able to take 30 days off after I had the baby, Well that time has come and gone and he is due to go back to work on Monday. He was an overhead emploee making x amount of dollars and he thinks that they are going to give him an non-overhead position at a lower rate. Are they able to do that?
Posted by: Amelia

Hi Jennifer! Yes, unfortunately they may be able to do that, if the employer has fewer than 50 employees.

Florida has no family leave law at the state level. An employer with 50 or more employees within 75 miles is covered by the federal FMLA, the Family and Medical Leave Act. That law permits an employee to take up to 12 weeks of unpaid, job-protected leave for several reasons, including for a parent of either sex to care for a newborn child. If your husband was covered by the FMLA, he would be entitled to 12 weeks of leave and he must be returned to his job with the same wages, hours and working conditions when that leave ends.

Because your husband was granted only 30 days of leave, we suspect that he is not covered by the FMLA. In that case, the employer was not legally required to give him any time off for parental leave. If a company has the policy of giving a new mother 30 days off to care for the baby, they must also extend that benefit to new fathers. Otherwise, they are guilty of illegal discrimination. However, there is no state law that the employee must be returned to the same job after parental leave. Hindsight is 20/20, but this might have been a good question for your husband to ask before takinng leave.

If the company has a policy of returning a new mother to her job after leave, then they must do the same with a new father. If this is the case, your husband should file a discrimination complaint with the Florida Comission on Human Relations. If he believes he was entitled to FMLA, then he should file a complaint with the U.S. Department of Labor at http://www.dol.gov. It is illegal for an employer to take negative action against an employee who files a complaint in good faith, even if the complaint is later found not to be valid. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Need Info

I live in Florida and have worked for this company for almost 10 years. The owner has 5 stores with more than 10 people in each and they are within 75 miles from each other. I am currently approaching my 9th month of pregnancy and will be taking leave soon. First, the owner told me as long as I have a strong managment team I will be able to take my leave with no problems. Then a couple of weeks later he told me he cannot wait the 12 weeks and will replace me as soon as I take leave and when I come back I would be put in a lower position with lower pay. (That doesnt make me want to come back.) Just until he can work me back into my current position, which can take any where from months to years. So my question is what can I do? Can I file for unemployment since I know I’m not going to receive my 12 weeks under FMLA ? Or should I just wait it out. Only thing I know to do is to find another job that will supplement my income after the baby.
Posted by: Amelia

Hi Need Info! Okay, let’s take a deep breath here.

If the employer has 50 employees within 75 miles of your work location, you are covered by the federal FMLA. That law entitles you to a total of 12 weeks of unpaid, job-protected leave for pregnancy, childbirth and to care for your newborn baby. Under that law, when you are ready to return to work, you must be returned to the same job with the same working conditions, benefits and salary.

The employer is 100% free to hire someone to fill in for you while you are on FMLA. However, when you are ready to return (with your doctor’s permission) you must be reinstated to your job. In certain cases it may be impossible to return an employee to the same job. For example, the store where you worked might relocate while you are on FMLA. In that case, you are entitled to another job with the same working conditions, benefits and pay — in other words, being manager of a different store.

If you cannot return to work after 12 weeks of FMLA, the employer can fire you or offer you a different job. However, if you are able to return within 12 weeks or less, you are entitled to job restoration under federal law.

You should absolutely NOT quit. If you do so, you are not eligible for unemployment or for job restoration because you quit. You would also have no way to prove that the employer did not intend to return you to your job, because you quit before that happened.

You need to have a tactful conversation with the owner about FMLA. Your attitude in approaching this should be that you are helping your employer navigate a difficult process. He may not have had many managers on maternity leave before, so you are getting the information for him. Print out this U.S. Department of Labor Fact Sheet on FMLA at: http://www.dol.gov/whd/regs/compliance/whdfs28.htm. Show it to your employer, especially the portion on job restoration. Tactfully explain that under FMLA, you must be returned to your job. You just want him to know, to avoid any future problems or misunderstandings when you are ready to return to work. Also let him know now, in writing, when you expect to go on FMLA for childbirth and when you expect to return to your current job. Keep a copy. (Obviously, if you go into labor sooner that will change, but at least you have given notice as far as possible.)

The ideal solution here would be for the owner to temporarily promote an assistant manager to “acting manager” while you are on FMLA for 12 weeks. This person should understand that they will gain valuable experience that will help them to move ahead in the company. However, they should also understand that legally, when you return from FMLA, you will be returned to your job as manager.

The employer should give you FMLA papers to complete when you go on leave. (If not, check back in with us and we will provide a link.) Stay in touch with the employer every week or two by phone, or as he requests. Let him know in writing a week or so before you are ready to return to work.

As long as you do not exceed 12 weeks of FMLA, you are legally entitled to job restoration.

If the employer does not restore you to your job when you are ready to return, file a complaint with the U.S. Department of Labor at http://www.dol.gov, and file for unemployment benefits. The DOL will investigate and if they find your rights under FMLA have been violated, they will sue the employer for you. In most cases, as soon as the DOL becomes involved, the employee is returned to her job. Hopefully it won’t go that far, because the employer will get more information on FMLA in advance. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Christi

Hi, I live in Florida and have been working at my job for around 8-9 months. I am 35 weeks pregnant and went to my H.R. department to fill out my papers for my maternity leave. I was told first that i get 3 months and now I am being told because of the time I have been there, I only get 6 weeks. Is this true and if so is there any other leave or anything I can do or take to make this longer, because this is my first child and i know 6 weeks is not going to be enough time to leave her and go back to work. Thank you
Posted by: Amelia

Hi Christi! Actually, the employer is being very generous in giving you any time at all. Under the federal FMLA, or Family and Medical Leave Act, an employee is entitled to 12 weeks of unpaid, job-protected leave for pregnancy and childbirth. However, that law applies only to employees who have been with the company for at least 12 months. (This is probably what HR was thinking of when they said you had 3 months of leave.)
Because you are not entitled to FMLA, and Florida does not have a family leave law, there is actually no law that the employer must give you any time at all. They could fire you for being absent more than a week or two.
It is understandable that you may not want to return to work when your child is so young. However, you need to consider the consequences. Your doctor will probably release you to return to work six weeks after a normal delivery. If you choose not to return to work when you are physically able to do so, then you are basically quitting your job. If the employer has paid a portion of your health insurance or other benefits while you were on maternity leave, you may be required to repay them, if you do not return to work when you are physically able to do so. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Judi

Hi! Found your blog and I’m kinda of at a loss as to what to do here.

When I was originally hired a year ago I worked a 9 – 5 or 9 -8 shift for my position. When we fired a receptionist I was asked to “temporarily” cover the night shift and my schedule has been changed from 1 – 10 p.m.

I’m currently 12 weeks pregnant. Not only am I not really looking forward to being 9 months pregnant and working until 10, but no one seems to want to accommodate my schedule once the baby comes. It’s being “highly suggested” that I take 6 weeks maternity leave instead of the full 12, and that I come back to working a night schedule after my maternity leave since its “not in the budget” to hire a new receptionist.

This wasn’t my original position I was hired for, and I feel since I’ve been flexible in working through a what was supposed to be a temporary situation, that my employers would work with me as well.

The receptionist position is supplemented by another person who refuses to work the evening shift because she “can’t.” I suppose this question is multi fold. I’m assuming if I quit after my maternity leave I’ll have to supplement my own insurance and pay my premiums in full until I find another job and get on their insurance. But should I also assume my employer has no obligation to work with my schedule or provide me with the hours of my original position if I go on leave working this position?
Posted by: Amelia

Hi Judi! Unfortunately, the answer to all your questions is “yes.” There is no Florida or federal law that requires the employer to accommodate your schedule based on pregnancy, or after you return from maternity leave.

It is unfortunate that you agreed to work the evening shift. If you had quit rather than accept that position, you would have qualified for unemployment benefits. Unfortunately, once you work the new schedule one day, you have accepted it and do not qualify for unemployment benefits if you quit after that.

We agree that it was unethical for the employer to represent this as a temporary change when in fact it was permanent. However in Florida, the employer has the right to change work hours and working conditions at any point. Unless you have something in writing that says this change was temporary, you really have no recourse. Nevertheless, you can and should sit down with the employer and have a calm, private, tactful conversation about this. Say that you never intended to work the evening shift, and respectfully ask to be put back on your original shift. Leave your pregnancy out of this. It is illegal discrimination for an employer to make work decisions based on your pregnancy, or because you have a new baby.

If the employer has 50 workers within 75 miles of your location, you are entitled to 12 weeks of unpaid, job-protected leave for childbirth and baby bonding under the federal FMLA. The employer cannot deprive you of this right. Your health insurance must be continued on the same basis as before, during this period. When you return, you must be given the shift you were working before you went on maternity leave — meaning 1 pm to 10 pm. If you do not return, you must repay the employer’s part of the premiums. If you are covered by FMLA, our recommendation would be that you take 12 weeks of maternity leave and then return for 2 to 4 weeks so you don’t have to repay those premiums.

If you quit due to working hours or because you are a new parent, you will not qualify for unemployment. In most states, if you are fired because you have intermittent child care problems or excessive absences due to minor illnesses, you qualify for unemployment benefits. Obviously, the long-term solution is to discuss this with your employer, and if they are not willing to change your shift, look for another job. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Lexie

I have a question, not specifically about labor law, but about a breastfeeding mother’s rights during jury duty. I have been called for jury duty next month and I’m a nursing mom. (I am not eligible to be excused as a caretaker of an infant because I work full-time). I recently read a local newspaper article that reported on the fact that the only facilities available to pump at my county’s courthouse are the bathrooms that, according to the report, are very unclean. What rights do I have here? I was under the impression that new healthcare laws required that facilities, other than a bathroom, be provided for pumping. Is this correct? And if so, does this only apply to employees at a workplace? If I call and ask for other accommodations, I’d like to be armed with the correct facts. Thank you for your help! -Lexie
Posted by: Amelia

Hi Lexie! Yes, the law you cite is a federal law that applies only to employers. In fact, it is part of the federal Helathcare Reform law, which some people are working to repeal. That law requires that an employer make reasonable accommodations for a breastfeeding employee during the infant’s first year of life, unless it is an undue hardship. For example, renovating a old, crowded courthouse to include a room for breastfeeding mothers would most likely be an undue hardship. And of course, the court is not your employer.

Also be aware that federal laws do not apply to state courts, and vice versa. You have not said whether you are summoned for jury duty in a state or federal court.

Your best bet is to appeal to the judge’s sense of decency rather than demand your rights. Judges have wide latitude in excusing people from jury duty. Explain to the judge that this is an undue hardship for you and your child, because there is no private, lockable, sanitary space at the courthouse to use a pump, as there is at work. Respectfully ask that you either be excused from jury duty, or allowed to bring your infant and breastfeed her in court as necessary. (Florida does have a law that allows a mother to breastfeed her infant in any public or private location.) Our guess is that the judge will take pity on you and excuse you from duty, rather than have an infant in his courtroom. However, there is no Florida or federal law that we can find, that would require the judge to make this ruling. HTH, and thanks for reading the blogs!~ Amelia

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