An employee has worked for only a few weeks with us before we offered her a promotion to a new department.  A day after being offered the promotion, the employee stated she was pregnant.  Because she will not have been employed with us for 12 consecutive months prior to the need for medical leave, she will be "terminated" when she needs to begin the medical leave (which is how all medical leaves are handled if the employee isn't yet eligible for FMLA).  The employee may then re-apply to be hired when they want to return to work, which isn't a guarantee they will be hired back.  Because we know she'll be terminated when she leaves to have the baby, we want to rescind the promotion offer BUT let her KEEP the pay increase we offered and allow her to remain in her current position.  She will have barely been trained and doing the new job before needing to leave and having employment terminated.

What are your thoughts on how we should handle this situation?  Our attorney advised this would be fine to do, but I would like other opinions.

Had the employee been eligible for FMLA, we would not have had to do the termination and would not have considered rescinding the promotion offer.  It doesn't seem logical to move someone in a job who will be leaving our company in 7 months.....maybe to be re-hired, maybe not.

You are right you don't have to be concerned about FMLA, but you do need to be concerned about discriminating due to pregnancy under the Pregnancy Discrimination Act (PDA). 

 http://www.eeoc.gov/facts/fs-preg.html states "An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of her job. An employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of co-workers, clients or customers.

An employer may not single out pregnancy related conditions for special procedures to determine an employee's ability to work. However, an employer may use any procedure used to screen other employees' ability to work. For example, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy related conditions to submit such statements.

If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing modified tasks, alternative assignments, disability leave or leave without pay. {Doesn't sound like this is the case...sounds like she is able to perform...so I am not sure altering the assignment would fall under here}

Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer may not have a rule which prohibits an employee from returning to work for a predetermined length of time after childbirth."

SECOND SOURCE:http://employment-law.legalmatch.com/

"Two primary federal laws guide most state Pregnancy Laws. The Pregnancy Discrimination Act (PDA) protects parents-to-be; this came into federal law as an amendment to the Civil Rights Act of 1964.  Passed by Congress in 1978, the PDA makes it illegal for employers to refuse to hire, fire, or deny a promotion to women who are pregnant.  The law also provides that employers must treat a pregnant woman the in the same manner as it would treat any other employee that becomes ill or temporarily disabled. More legal information about these laws and other employment and hiring issues can be found at LegalMatch.com in their LegalCenter Law Library  "

Did your attorney discuss anything outside of FMLA?  Did he/she say if/how PDA is applicable ?  If not, I would ask that question.

I wouldn't accept employment law advice from a non-employment law specialist.

In any event, the Pregnancy Discrimination Act applies.  How would you handle this if someone said they were going to undergo some other sort of medical procedure that would put them out in roughly the same sort of time frame?  If your answer is that you would fire them, I suspect that this is OK because the PDA merely requires that you treat pregnancy and complications of pregnancy like any other medical issue.  From the EEOC: "If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing modified tasks, alternative assignments, disability leave or leave without pay."

http://www.eeoc.gov/facts/fs-preg.html

 However, there may be state level protections that complicate matters and you really need to lean on your attorney to be sure on that one.

TXHRGuy...In reading that, I thought at first exactly what you did, but then my second thought was that this employee is not currently "unable to perform her job due to pregnancy...", she is just pregnant. She will be unable to do so when she goes out on disability to have the baby, but not now at the time of the promotion. So they would be denying her the promotion due to the fact that she is pregnant, not the fact that she is currently unable or disabled. 

I agree this is a case for a very proficient employment law attorney. 

Well, I think the termination issue is covered and you are probably OK.  Rescinding the promotion is probably not OK.  It may well be the case that a person who plans to go get a kidney transplant would also have the offer revoked after notification, but that could be hard to prove unless you've done it a few times, preferably to people of varying demographics to establish the practice.  One way people get hit in the retaliation arena is that they can't really demonstate that they would have done this in similar cases.  Rescinding the offer is way, way more dangerous than the termination in my opinion.  Lawyer time either way.

We have an attendance policy in place and we simply apply it.  If it's not paid vacation and it's not job protected leave, it's covered by attendance, and that way all of our terminations have nothing to do with medical conditions per se.

Definitely agree that termination itself would not be the issue if that is the way that the OP handles all long term leaves that do not fall under the protection of FMLA, but rather the rescinding of the promotion.