May 29, 2025
HR’s Newest Bermuda Triangle: ADA, FMLA & PWFA
We used to talk about the federal Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and workers compensation being HR’s Bermuda triangle. Three topics that often overlap in real life: (1) an employee has a compensable slip, twist or fall in the workplace (WC) that; (2) results in a physical or mental impairment that substantially limits one or more major life activities (ADA); and (3) for which the employee needs to take some time off from work (FMLA).
Now, enters the Pregnant Workers Fairness Act (PWFA). A claim was recently filed alleging the employer violated the ADA, FMLA, and PWFA when it fired a pregnant employee. This may be an interesting case to follow. As I read the claim, I have lots of questions. See if you do, too. Here’s the scoop.
A Director of Quality was diagnosed with an ectopic pregnancy on September 15, 2024, that would require surgery and recovery. The diagnosis was confirmed on September 17, 2024. On September 22, 2024, she notified her HR representative and requested a leave of absence from September 15th through October 23, 2024.
On November 3, 2024, the employee notified her employer that her doctor estimated the paperwork would take 10 to 15 business days to process. On November 13, 2024, the doctor’s note confirmed the medical need for leave from September 15, 2024, to October 23, 2024. The claim then alleges the employer refused to grant the requested leave, and terminated her employment on November 26, 2024, because she was not approved for leave from September 15, 2024, to October 23, 2024.
Lots of questions, right? What happened between October 23rd and November 3rd? If the employee was medically released, why did she not return to work? To what paperwork are they referring? FMLA? If so, when did the employer send the FMLA notices? What happened between November 13th and the 26th? Did the employer tell the employee to not return to work while they considered what they would do next?
As we stay tuned for the answers, and perhaps despite the answers, consider some proactive steps.
- When an employee notifies you of a medical condition for which they may need time off from work, provide the employee with the FMLA notice of eligibility. If the employee is eligible, also provide the FMLA Notice of Rights and Responsibilities, along with the corresponding medical certification form. There are deadlines you must meet when issuing these notices. Remember, these same steps apply in a variety of other situations covered by the FMLA (to care for a family member, birth/adoption of the employee’s child; military caregiver or exigency leave).
- When an employee notifies you of a medical condition for which they need support while at work, engage the employee in an interactive dialogue. This will help determine if the condition is a disability under the ADA and what reasonable accommodation you may or must provide, if any.
- When an employee notifies you that she has a medical condition related to pregnancy (including a recent pregnancy or trying to become pregnant) and needs time off from work or an accommodation at work, engage in an interactive dialogue. Be aware that the nature of this dialogue is different from the ADA’s dialogue. For example, there are some accommodations for which you are not permitted to require a doctor’s note.
