Empowering Individuals (518) 308-8339

TalkLex Blog

Texas Baby Clothes Company Called out for Denying Mom’s Request for Remote Work so She Could be with Premature Baby in NICU – Wrong but Illegal?

Posted by Giovanna A. D'Orazio | Jan 24, 2024

A baby clothing company in Texas is receiving a lot of online backlash after denying an employee's request to work remotely while her newly adopted premature baby was in the NICU, nine hours away from home.  After the backlash, the CEO has issued two apology videos.  

Some companies pride themselves on offering family leave that exceeds their legal obligations even if that still seems like the bare minimum.  That was obviously not the case here.  Perhaps ironically for a baby-oriented company, this company only offered two (2) weeks of parental leave for employees who worked there under a year and, in return for using vacation time to be paid during that time, required the employee to commit to another six (6) months of employment.

Stingy? Yes.  Legal? Also (likely) yes.  The federal Family and Medical Leave Act (FMLA) provides for 12 weeks of unpaid leave but only for employees who work for larger (50+ employees) private employers (or public employers) and who worked full time (1250 hours) for at least one year prior to taking leave.  This employee only worked for this company for seven months prior to her request and therefore was not legally entitled (on a federal level) to any protected time off.

Another wrinkle here is the request for remote work.  Since the FMLA is unpaid, presumably when an employee asks for remote work as opposed to leave, it is so they can continue working and be paid.  There's a problem here, though.  The FMLA is a leave statute not an accommodation statute.  So, where else can we go for a remote work arrangement?  Maybe nowhere.  There is no federal law requiring accommodations to care for someone else with a disability – only your own (that would be the Americans with Disabilities Act).  So, again, here, this mother had no federal right to request an accommodation to work remotely due to her child's disability or serious health condition.

When there is no federal law to help, sometimes state laws step in.  You may or may not be surprised to know that the state of Texas does not have family leave, paid or otherwise.  New York does.  New York's Paid Family Leave law – which again is also a leave statute and not an accommodation statute – would have allowed this mother paid leave to be with her child in the NICU because NY law applies to employees who have been working for 26 weeks, not one year like the FMLA.  https://paidfamilyleave.ny.gov/eligibility

It feels very unfair, but starting a new job and then getting pregnant or, in this case, adopting a child puts women employees at risk of losing their jobs.  This doesn't mean pregnant women have no protections whatsoever - we currently have two pregnancy discrimination cases at the EEOC in this context – but it certainly limits your rights and therefore legal remedies as compared to someone who has been working long enough to make a protected request for leave. 

Employers can also get themselves in trouble when they apply leave or remote work policies unevenly, even if you didn't have a technical legal right to what you requested in the first place.  So, if an employer is letting men work from home whenever they want, and not a new mom, this could be a problem. 

If you think you have been discriminated against or denied leave or an accommodation to which you are entitled, feel free to complete an intake form on our website. We are happy to see if we can help.

This article is not intended to be legal advice and we have no personal knowledge or involvement in the situation in Texas, which is not a state in which we practice.  All situations and legal rights and remedies are unique and depend on their own set of facts. 

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

Subscribe To Our Newsletter

Join our list and receive weekly updates about the law (we promise it won't be boring, and we don't share your information with anyone).