In an organization not covered by FMLA (less than 50 employees); does an employee wishing to take off from work to birth and care for a child have a right to return to work? Is the employer obligated to hold that job for that employee? What New Mexico State Law or Federal laws cover this issue?
New Mexico has no family leave law at the state level. The federal FMLA applies only to employers with 50 or more workers within 75 miles, so this employer is not covered. That means the employee can be terminated when she misses a week or two of work for pregnancy and childbirth. There is no legal obligation for the employer to return the employee to work afterwards, because she is not covered by FMLA.
If the employer has more than 15 workers, the federal PDA or Pregnancy Discrimination Act applies. Under the PDA, if an employer offers benefits to employees on short term disability or medical leave for other conditions (such as heart attack or stroke), they must offer the same benefits to women for childbirth disability. However, if the employer offers no benefits or medical leave for other conditions, they are not required to offer any for pregnant women or maternity leave.
While it seems cruel to fire a pregnant woman now, it was the situation that every woman faced until the FMLA was passed in 1993.
If the women is terminated, the New Mexico mini-Cobra permits her to continue group health insurance for up to 6 months, as long as she pays all the fees.
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