I have an employee who is pregnant and due in October. She has already used up all of her PTO and keeps leaving early and taking days off because of different reasons. We offer 2 months non-paid maternity leave and she has already told us she will be on bed rest prior to her due date so she will need to use FMLA. Is there anything we can do to hold her accountable for all of her attendance issues prior to her going on leave?

With 15 employees, FMLA is not normally covered. Is there something specific I need to understand?

Your company is covered under ADA and the Pregnancy Discrimination Act and should be accommodated to the maximum reasonable limits.

https://www.eeoc.gov/pregnancy-discrimination#:~:text=The%20Pregnancy%20Discrimination%20Act%20(PDA,term%20or%20condition%20of%20employment.

Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.  See http://www.dol.gov/whd/regs/compliance/whdfs28.htm.

So, your answer is probably no. Adverse attendance actions due to pregnancy related issues are not going to be legal in most cases.

MEMBER RESPONSE:

I thought FMLA started at 15 employees.  I think I was mixing it up with the ADA.  If this is the case and we only offer 2 months of maternity leave can she use disability for a limited period of time if she needs to go on bed rest prior to her giving birth?  How does all of that work if we currently pay 70% of her insurance and she pays the rest?