The Employee is Pregnant … Now What?
First, Ohio is an “at will” state. This means that either the employer or the employee has the right to terminate the employment at any time for a reason, or for no reason, provided of course, the termination does not violate certain constitutionally protected rights, and provided that there exists no employment contract that would be violated by this termination.
However, there exists a federal law that pre-empts state law, and this is the Family Medical Leave Act )”FMLA”, which should be carefully reviewed by any employer or employee. If the employer is subject to the FMLA, and if the employee is eligible under the FMLA, then the employee is entitled to UNPAID leave and the restoration of her position (or his…yes, dad’s get this opportunity, too).
The FMLA entitled employees to a total of twelve weeks of leave during any twelve month period for medical reasons, such as birth or adoption of a child, care of a child…or even care of a spouse or parent who have a serious medical condition. The eligible employee who chooses to take leave under the FMLA is to be restored to the same or equivalent position upon return, and the employee must be able to perform the essential functions of that position.
Is the employer subject to the FMLA? Yes, If the employer has 50 or more employees for each workday for twenty or more weeks.
Is the employee eligible to take leave under the FMLA? Yes, if the employee has worked at least 1250 hours in a year at a worksite with at least 50 people in a 75 mile radius…employers should be careful as to the term “worksite” as this is a frequent issue of litigation.
Eligible employees must take care to provide proper notice of their intent to take the FMLA leave, and must provide such notice is a certain timeperiod. Employers must take care no not interfere with the FMLA rights, and follow requisite protocol to avoid a federal retaliation claim case. Upon a violation and a complaint being filed, damages may be lost wages, benefits, actual monetary losses, interest, reinstatement, attorney fees and costs.
There is a time frame that must be considered in filing a complaint. Failure to file a complaint in a timely manner could cause it to fail due to the statute of limitations.