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Jul26

rule if employee does not return to work

If an employee does not return to work after her written maternity leave of three months and does not join the company back our we entitled to pay her for the three months of maternity? It is more than a year she has not resumed saying her husband has asked her to stay home till the baby is a year old. But she has not informed the company officially but only through written mails. We are not registered under the federal FMLA Act. This company is based in Mumbi – India. Please advise

Even if the company is based in India, if the employee is working in the U.S., the employee is covered by state and federal law. (If the employee is in Mumbi, you can stop reading now. We only address HR issues in the U.S., under U.S. law and employment practices. There are simply too many differences between employment in the U.S. and other countries for us to offer advice to international readers.)

Assuming that this employee works in the U.S.:

If your company has 50 employees within 75 miles, you are covered by FMLA. If the employee refuses to return to work after 12 weeks of FMLA, the employee has quit. She can be fired if she takes additional time off, even one day longer than 12 weeks. If the employee is not covered by FMLA, you could have fired her when she missed a few weeks of work, and can still fire her for not returning to work.

There is no requirement that the employer pay a worker who is on maternity leave or FMLA. Some companies do offer paid maternity leave, FMLA or short term disability. In that case, almost always, if the employee does not return at the end of the maternity leave, the employee must pay the employer back. Companies can also require that the employee who does not return repay the employers portion of the group health insurance, which has been paid during FMLA or other leave.

An employee who has informed you by email or letter that she will not return has informed you officially. Generally written notification is considered more official than verbal notification.

A number of U.S. states have family leave laws similar to FMLA, that apply to smaller employers. However, even in those states, none of them would require you to give the employee a year off.

Feel free to post any additional questions you may have. Include the name of the state, for a more detailed answer.

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This entry was posted on Monday, July 26th, 2010 at 9:33 am and is filed under
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