Court scolds employer for firing pregnant employee who took leave beyond paid leave

On April 29, 2017, Dyamond got sick at work. She left early, sought care, and learned she was pregnant. She missed work on May 1, 2, 5, and 6 due to morning sickness. Based on these absences, the employer gave Dyamond its leave packet related to the Family and Medical Leave Act (FMLA). This packet included a certification form for her doctor to complete.

Nothing about flare-ups

The certification stated that Dyamond would need leave for monthly checkups, as well as recovery for 6-8 weeks after the delivery. The certification did not, however, say that Dyamond would need leave for episodic flare-ups, like morning sickness. Therefore, the employer approved Dyamond for FMLA leave for all leave except for her “flare-ups.”

Morning sickness continued

Dyamond continued to miss work due to morning sickness. On May 12, after working half a shift, she felt ill again. She told her supervisor, Rebecca, that she wanted to use FMLA leave for morning sickness. Rebecca, who was aware of Dyamond’s pregnancy, told Dyamond to list her absence as FMLA-related on her time report. In the paperwork, Dyamond wanted to use four hours of holiday time to cover the otherwise unpaid absence. The company policy required employees to use accrued paid time off with their unpaid FMLA leave.

But Dyamond had only 3.5 hours of holiday time remaining. The employer, therefore, designated 30 minutes of her May 12 absence as an “unauthorized absence.” In its view, the absence went beyond the scope of its FMLA approval. The employer fired Dyamond for the “unauthorized absence,” and she sued.

Court arguments

In court, the employer argued that it didn’t have to approve Dyamond’s bouts of morning sickness. They were “flare-ups” arising from pregnancy, and the certification didn’t mention that.

The court found it difficult to see how the employer could consider morning sickness to be a “flare-up” of pregnancy when the FMLA regulations expressly define morning sickness itself to be a “serious health condition.”

Given its knowledge of Dyamond’s morning sickness, the employer knew that the certification was incomplete, in which case, it should have provided Dyamond with an opportunity to fix it.

The employer also argued that, even if Dyamond was entitled to FMLA leave on May 12, she failed to comply with the policy of using paid leave for FMLA leave. It felt that the FMLA allows for termination under such grounds.

The court held that, even if employees fail to satisfy paid leave requirements, they remain entitled to take unpaid FMLA leave. The FMLA doesn’t allow employers to discipline (let alone, fire) employees for failing to meet their paid leave use policy, particularly when the employer approved the FMLA leave. This, the court said, appeared to be exactly what the employer did.

The court also frowned upon the company policy, as it said that, if employees don’t have the requested accrued paid time off to cover the absence, the absence will remain unauthorized “whether or not it is an FMLA-related absence,” and that “disciplinary action may be taken.”

In the end, the employer lost its bid to have the case closed.

Dyamond Davis and Antionette Burns, v. Illinois Department of Human Services, 7^th Circuit Court of Appeals, No. 22-2118, May 14, 2025.