Human Resource Blog

Layoff on Maternity Leave in New Mexico

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Can a New Mexico employee on maternity leave be laid off or fired?

Under some circumstance it is permissible. Under others it is not.

Generally, if it is part of a larger layoff and the employee qualifies under the layoff guidelines, then it is allowable. But if an employer or supervisor simply wishes to replace the worker with someone else, it is illegal.

Workers are entitled to job protection under the Family and Medical Leave Act of 1993 (FMLA). It means that a worker returning from maternity leave is entitled to his or her original job back. If that job is not available, the employer must provide the worker with a job that is comparable in terms of pay, working conditions, and benefits.

There are several reasons why an employee may be entitled to FMLA leave, which allows for up to 12 weeks of the unpaid leave annually. Among those reasons is bonding with a new child, whether it’s a newborn, a newly placed foster child, or a newly adopted baby.

The federal Pregnancy Discrimination Act (PDA) makes it illegal to discriminate against a woman because she is pregnant. That means employers cannot fire a woman merely because she has become pregnant. Again, however, if the company is experiencing a general layoff, pregnant employees may be included.

Suppose administrative assistant “Mary” takes maternity leave. Her supervisor, “John,” is assigned a new administrative assistant, “Jill’” in her absence. John prefers Jill’s work to Mary’s. There is no comparable job for Mary to return to. John cannot legally lay Mary off.

However, assume the firm faces downsizing in Mary’s absence and must lay off 50% of the workforce, including 10 administrative assistants. Layoffs will be based on seniority. Mary is one of those who fall into the layoff group. Legally, she may be laid off.

Finally, 11 states have their own family leave laws, which differ significantly from the FMLA. They are Wisconsin, Vermont, Washington, Rhode Island, Oregon, Hawaii, California, Connecticut, Maine, Minnesota, and New Jersey. JH