Human Resource Blog

pregnancy leave

I have an employee that asked me if we can lay her off when she has her baby? Is this legal, or right to do?

If the employee is covered under the FMLA, or you are willing to put her back to work after the baby is born, this would be unwise and possibly illegal.

The employee is asking you to help her commit unemployment fraud. She wants to stay home with her baby but collect unemployment, by pretending that you have laid her off due to lack of work. You should decline to do so, because it is unethical, and it will increase your unemployment taxes.

If you are covered by the FMLA, the employee is entitled to be returned to her job after 12 weeks. If you do not return her to her job, you are in violation of the law. Assuming that she is physcially able to return, and declines, she would not qualify for unemployment.

Suppose you are not covered by FMLA, but are willing to put this employee back to work after her childbirth disability ends. If she declines because she wants to stay home with her baby, she has quit. That is certainly the employees right, but then she would not qualify for unemployment benefits. 

On the other hand, if you are not covered by FMLA and not willing to put the employee back to work after an absence of 6 to 8 weeks, then yes, you are laying her off. Once she is healthy again, she will qualify for unemployment benefits.

Many employees think that unemployment benefits are free money. In fact, in most states, the more former employees you have who collect unemployment, the higher the unemployment tax for your company will be.