My employee on maternity leave needs more leave because she has no child care. Do I have to hold her job?

June 10, 2016

Topics: Disability and Leave Obligations

The answer depends on the size of your company.  Generally, small employers only need to provide employees with pregnancy-related leave during periods of time when the employee’s doctor certifies that the employee cannot or should not work due to her own health condition (or the health of the baby when she is pregnant).  Once the employee is certified by her health care provider as able to return to work, small employers are generally not legally required to provide additional leave simply because the employee was unable to find child care.

For larger employers with 50 or more employees, eligible employees are entitled to certain pregnancy-related leave under the federal Family and Medical Leave Act (“FMLA”), and potentially under similar state laws.  The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave both for the period of time that (a) the mother is certified by her doctor as physically unable to work due to conditions related to the pregnancy (both before and after the birth) and (b) for any additional time beyond that up to the 12-week mark that the mother wishes to remain home to take care of a healthy child.  If the child has a medical condition as well, the employee still is only entitled to a total of 12 weeks of FMLA leave in a 12-month period.

Once the employee’s FMLA entitlement is used up and the mother is healthy, even large employers generally do not need to provide additional leave merely because an employee has been unable to arrange for child care.

Letting an employee go close in time to a maternity leave can be fraught with legal issues, however.  The company could be risking a pregnancy discrimination claim – even if that is not the reason for the termination.  For that reason, it is prudent to consult with counsel any time a company looks to let any employee go who is on or recently returned from a pregnancy-related leave.