Posted by Tamara
New Hampshire and the majority of states are covered under the federal Family and Medical Leave Act of 1993 (FMLA). This Act allows employees to take up to 12 weeks of unpaid leave for a variety of purposes, including childbirth, adoption of a newborn, or the recent placing of a foster child.
New Hampshire employees are curious, however, if workers on maternity leave can be terminated.
It is a valid concern. FMLA leave is unpaid and job-protected, which means the employee must return from leave to the same job, or to a job with the same wages, benefits and working conditions. There are, however, circumstances where a worker on FMLA leave can be terminated.
Consider Mary, an administrative assistant on maternity leave. Her supervisor, John, puts Jill, another administrative assistant in Mary’s job while she is gone. Because John prefers Jill’s work, he wants to keep Jill and lay off Mary. There is, however, no comparable job for Mary. In this situation, terminating Mary is most likely illegal.
If, however, Mary’s employer enacts a general layoff while she is on leave, Mary could be terminated. For example, the company decides to lay off 50% of its employees, including 10 administrative assistants. The employees are laid off based on seniority and Mary is part of that group. In this situation, Mary can be terminated, even though she is on FMLA leave.
The employer can take any employment action against Mary that would have been taken, anyway, had she not been pregnant.
These rules apply to those states covered by FMLA. There are some states, however, that have enacted family laws of their own. These states include Washington, Vermont, Wisconsin, New Jersey, Maine, Minnesota, Oregon, California, Connecticut and Hawaii. In these states, whose family leaves vary widely, the rules governing family leave may also vary widely.
For women during pregnancy, the federal Pregnancy Discrimination Act (PDA) acts as job protection. The PDA prohibits employers from discriminating against women just because she is pregnant. If, as with Mary’s employer, the company enacts a general layoff, pregnant women can be terminated, but only as long as the other employees are being treated the same.
Last 10 posts by Tamara
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