Human Resource Blog

Lay Off Employee During Leave

Hi I am a small acounting office. I have 2 employees one part time another full time. With the economy as it is alot of my clients were realtors and in real estate. I have had to lay off the part time employee this week. My other employee has been on maternity leave for 1 month plans to come back in 2 months.

I am in Florida and really can’t afford her when she comes back in 2 months. I’m in the midst of having to downsize my office as well because I am cutting expenses accross the board.

Is it against the law if I were to lay her off?

You can legally take any employment action against the employee on maternity leave that you would have taken, if she was not on maternity leave. If you were firing this employee simply because she was on maternity leave, you might be on shaky ground, even though as a small employer you are not covered by FMLA, the federal Family and Medical Leave Act. Firing the employee solely because she got pregnant and went through childbirth (and the attendant disability) might be seen as discrimination. However, that is not the case here.

The situation is that you would have laid off this employee anyway, if she were still coming to work every day. That is because you simply do not have enough business to justify keeping her on. And it is perfectly legal to do so, even though she is on maternity leave.