Human Resource Blog

Layoff on Maternity Leave in Nebraska

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

Under certain conditions, for example a general layoff, it is permissible to do so. Otherwise it is not. So the answer would be, it depends upon the conditions under which the employee is laid off.

The operable law in this situation is the Family and Medical Leave Act of 1993 (FMLA). This law guarantees workers as much as 12 weeks of unpaid and job protected leave annually.

There are different allowable reasons for taking such a leave. Among them are bonding with or caring for a newborn, a recently placed foster child, or a newly adopted baby.

“Job protected” refers to the fact that the employee is entitled to return to his or her job after the leave is up. Should that not be possible, employers are required to provide the worker with a job that is comparable in terms of benefits pay, and working conditions.

If an employer faces a general layoff and many employees are affected, those who are on maternity leave or who are pregnant may legally be laid off. Laying off an employee simply because the employer likes her “temporary” replacement better would not be legal, however.

As an example, assume that administrative assistant “Mary” takes maternity leave. During her absence, a new administrative assistant named “Jill” is assigned to her job. Her supervisor, “John,” prefers the work done by the replacement. There are no comparable jobs, however, for Mary to return to when she comes off leave. So John lays her off and replaces her with Jill. That would be illegal.

If the company faced a general layoff while Mary was on leave, and that layoff involved half the labor force, including 10 administrative assistants, however, the story would be different. The company is laying off based on seniority. Under those conditions, Mary would be laid off. It would be legal to do so, even though she is on maternity leave.

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