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Federal Maternity Leave

Posted by Tamara

Many employees are surprised to learn that there is no federal maternity leave law. Instead, most employees are entitled to unpaid FMLA leave for pregnancy, childbirth or baby bonding under FMLA.

The federal FMLA (Family and Medical Leave Act of 1993) provides up to 12 weeks of unpaid leave for certain medical conditions. Caring for a newborn, a newly adopted child or a newly placed foster child are covered by FMLA leave, as are an employee’s serious medical condition, and the need for the worker to care for a parent, child or spouse who is seriously ill.

Workers nationwide are concerned about their jobs and wonder if they can legally be terminated while on maternity leave.

In most cases, it is illegal to terminate an employee for taking federal FMLA. FMLA is job-protected, which means when the employee returns from leave he or she must be given the same job or one that’s comparable in wages, working conditions and benefits.

In addition, the federal PDA (Pregnancy Discrimination Act) prohibits employers from discriminating against a woman just because she is pregnant or on maternity leave.

As with all rules and laws, though, there are exceptions. An employer can take any action against an employee on FMLA that would have been taken anyway, if the worker was not on FMLA.

If a worker is on leave and the employer imposes a general layoff, the employee could be terminated.

For example, Mary is an administrative assistant and is on maternity leave. While she is away from work, her employer downsizes and lays off 40% of the employees, including 6 administrative assistants. In this scenario, pregnant women and those on maternity leave would not be exempt from the layoffs, so Mary could be terminated.

Consider another scenario: Mary is on maternity leave and her supervisor fills her position with Jill, a temporary employee. Jill is a good worker and the company would like to hire her as a permanent employee and terminate Mary.

Terminating Mary in this situation would probably be illegal. FMLA guarantees her a job when she returns from leave. If the employer wants to keep Jill, it must either move Jill to another position or find another position for Mary, one comparable to the job she had prior to taking leave.


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