Human Resource Blog

Maternity Leave

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Does an employer have to guarantee a position at the same rate of pay when a woman comes back from maternity leave? Or guarentee a position at all, meaning can an employer not have a position for a woman when she returns from maternity leave? A complete advise of rights would be helpful.
SDJ
Arizona

An employer in Arizona must guarantee the same job to a worker who uses FMLA for maternity leave. If this is absolutely impossible given the situation, the employer must guarantee a job with the same hours, working conditions, benefits, pay and status. Usually this means the same job.

(There are very, very few examples of a situation where it is impossible to return the employee to the same job. Perhaps if an employee was preparing for a mission to Antarctica, and would be on FMLA until the station at the South Pole was iced in, it would be “impossible” to return the employee to the same job. But, that is almost never going to apply to a receptionist, secretary or most workers.)

The Family and Medical Leave Act of 1993 or FMLA gives workers up to 12 weeks of unpaid, job-protected leave each year for the worker’s serious health condition. Employees can also take FMLA leave to bond with a new child, whether the child is a newborn, is newly adopted, or is a foster child under the age of 18 recently placed in the home. In addition, employees can take FMLA to care for a son, daughter, spouse or parent with a serious health condition.

In most cases, even an employer who provides paid maternity leave must return the worker to the same job, at the same rate of pay. That’s because the employer is simply substituting paid leave for unpaid leave under FMLA. (Otherwise, the employee would be entitled to 12 weeks of paid leave plus 12 weeks of unpaid leave under FMLA.)

FMLA covers employers with 50 or more workers within 75 miles. Employees are covered when they have worked for at least 12 months (not necessarily consecutively) and have put in at least 1,250 hours in the 12 months prior to taking leave.

California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington and Wisconsin have family leave laws at the state level, that offer additional benefits or protection to workers. Ar

izona does not.

The Pregnancy Discrimination Act requires employers to treat pregnant workers taking disability leave the same as other workers on short term disability. So if Joe has a heart attack, and is returned to his job after a paid short term disability, Mary must be treated the same when she takes disability due to childbirth.