If a pregnant employee has doctors appointments for routine well -pregnancy care and may have occassional morning sickness and calls out of work, does this qualify as FMLA, or would it only count if the doctor puts a patient on bedrest etc, followed by the birth.

Thanks.

I know of situations where employers counted half day absences toward the total leave allowed under FMLA. Under some circumstances, employees may take FMLA leave on an intermittent basis (i.e., by taking leave in blocks of time or by reducing their normal work schedules).

To do this, the employer must designate a qualifying absence as FMLA leave, even if the employee requests that the leave not be counted toward the FMLA entitlement. However, a qualifying absence under FMLA must be taken for one of the following reasons (from EBIA):

• because of the birth of an employee’s child and in order to care for the child, if the leave is concluded within 12 months of the birth;

• because of the placement of a child with the employee for adoption or foster care, if the leave is concluded within 12 months of the placement;

• to care for an immediate family member (defined as a child, spouse or parent) who has a serious health condition; or

• because of a serious health condition that makes the employee unable to perform the functions of his or her position.

I don't think routine checkups fit any of the criteria above, even if pregnancy related. Also, you might violate the Pregnancy Discrimination Act by applying FMLA leave only to pregnancy related doctor visits (unless it would qualify as a 'serious health condition" as noted above).

Actually, pregnancy IS a serious health condition. See 29CFR825.114

(a) For purposes of FMLA, ``serious health condition'' entitling an
employee to FMLA leave means an illness, injury, impairment, or physical
or mental condition that involves:
...
(2) Continuing treatment by a health care provider. A serious health
condition involving continuing treatment by a health care provider
includes any one or more of the following:
...
(ii) Any period of incapacity due to pregnancy, or for prenatal
care.

Oriecat

You have made some excellent points. However, I don’t see how routine office visits can be considered incapacity related to prenatal care.

As to occasional morning sickness, I have come to understand that a person must be incapacitated for a period of at least 3 consecutive days in order for such incapacitation to be considered FMLA.

Unless a woman is determined to be incapacitated by her doctor during her pregnancy I think there is no FMLA issue.

Based on where the comma is, it just sounds like a) incapacity due to pregnancy or b) for prenatal care. Not a) incapacity due to pregnancy or b) incapacity due to prenatal care. If it was incapacity of both then I don't think there should be a comma there. So based on that, it just sounds to me like prenatal care itself is FMLA qualifying. I fully admit that I could be reading wrong!

A friend of my is a very successful employment attorney. She indicates to me that the doctor's appointments and morning sickness are all covered under the FMLA.