Posted by Tamara
Under federal law, a New York employee can be laid off under certain circumstances. However, generally an employee cannot be laid off solely because she is pregnant, or on maternity leave.
Several states, including New Jersey, Rhode Island, Washington and others, have enacted their own family leave laws. New York is not one of those states. New York is covered by the federal FMLA (Family and Medical Leave Act of 1993.)
FMLA provides up to 12 weeks of unpaid, job-protected leave for a variety of family and medical situations, including childbirth, adoption of a newborn and placement of a new foster child. Under FMLA, employees are guaranteed a job when they return, or a comparable job to the one they left (same working conditions, pay, benefits, etc.)
For example, Hometown Retail employees 1000 people. Chloe works for Hometown Retail as one of 5 regional managers. She goes on maternity leave for 2 months. During that time, her supervisor, Frank, hires Barbara to fill in for Chloe. When Chloe returns, though, Frank wants to keep Barbara and get rid of Chloe, but there are no other regional manager positions available. In this case laying off Chloe is probably illegal.
In another situation, however, Chloe’s termination might be legal. For instance, Hometown Retail is bought by another company while Chloe is on leave. All upper management, including the 5 regional managers, will be laid off and replaced by the new company’s management. In this situation, it is legal for Chloe to be terminated even though she is on leave. This is an employment action that would have been taken, even if Chloe were not on leave.
When an employee is on leave and the company suffers a layoff that affects all job positions and departments, the employee on leave is not exempt.
Another federal law provides job protection for pregnant women. The Pregnancy Discrimination Act (PDA) prohibits companies from using a woman’s pregnancy against her. Which means a woman cannot be terminated, have her benefits or working conditions altered simply because she is pregnant.
If, however, the company experiences a general layoff, pregnant women may be terminated, but only when all other workers are being treated the same way.
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