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Maternity Leave

Our company has 5 employees and we are located in the state of NJ. We have an employee who was under performing before being pregnant. We did not fire her because she was pregnant. However, after her 6 weeks of maternity leave she plans on returning taking an additional 2 weeks unpaid off. Do we have to hire her back? Can we deny her the additional 2 weeks? Also, due to the size of our office do we have to allow her to take FMLA. Thank you.

There are a few federal and state laws to consider. Though they may not apply, it’s good practice to be aware of the general mandates.

The federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job protected leave in a 12 month period for specified family and medical reasons. A private-sector employer with less than 50 employees is not covered by the FMLA.

The federal Pregnancy Discrimination Act (PDA) requires covered employers or other covered entity to treat a woman who is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth in the same way as it treats any other temporarily disabled employee. The PDA applies to employers with at least 15 employees.

The New Jersey Family Leave Act (NJFLA) entitles eligible employees of covered employers to take up to 12 weeks of job protected leave in a 24 month period. An employer must have at least 50 employees in the entire company, even those located outside of New Jersey, to be covered under the NJFLA.

New Jersey also recently amended its Law Against Discrimination (NJLAD) to include the Pregnant Worker’s Fairness Act (PWFA) which bans pregnancy discrimination and establishes workplace accommodation requirements on employers. The PWFA applies to all employers.

Under the PWFA, an employer must treat a pregnant woman in the same manner it would treat a similarly-situated non pregnant employee. The act requires reasonable accommodations be made in the workplace to address needs related to the pregnancy. It doesn’t grant leave entitlement or job reinstatement rights.

Though legislation may not have mandated providing the employee with six weeks of maternity leave, in doing so the employer established an agreement with the employee to hold her job for the duration of the leave. Terminating her employment prior to her exhausting the leave time based on previous poor performance is not advisable. If the employee returns from leave on time, it’s best to discuss performance expectations and document issues going forward.

Since neither federal nor state laws apply to the situation and assuming there is no collective bargaining agreement or employment contract that states otherwise, the employer is within its rights to deny the employee’s additional leave time request. If, after informing the employee of the denial, the employee doesn’t return to work on time, her employment can be terminated for job abandonment or unexcused absences.

This entry was posted on Wednesday, August 13th, 2014 at 8:22 pm and is filed under
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2 Responses to “Maternity Leave”

  1. Debbie Wainwright Says:

    I agree with most of the response, but two additional considerations are the disability discrimination and implied contract. New Jersey Law Against Discrimination requires employers to provide reasonable accomodations to disabled employees. The law defines disability extremely broadly, and the accomodation may require time off from work for medical conditions. In one case (Soules v. Mount Holiness), a New Jersey court decide that eight months off from work was a reasonable accomodation for a person with kidney cancer.

    The other issue is the very nebulous concept of implied contract. If you provided any documentation to the woman guaranteeing time off or you have an employee handbook which provides for maternity leave, you are bound to provide it. Several years go, there was a case (Lapidoth v. Telocordia) where a company told a pregnant woman that she could take a year off. For economic reasons, they eliminated her position while she was on leave. Despite a strong at-will provision in the company handbook, the court found that she had an implied contract that guaranteed dismissals only for cause.

  2. hrlady Says:

    Thanks for the additional info, Debbie!

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