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Can You Be Laid Off While on Maternity Leave?

April 29, 2024 by Cynthia Orduña

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Maternity leave is a crucial period for new parents to bond with their child and adjust to their new roles, but concerns about job security often loom large. In this article, we’ll dive into the legal protections in place–particularly under the Family and Medical Leave Act (FMLA)–to address the question, “Can you be laid off while on maternity leave?”

Can Employees Be Laid Off During Maternity Leave?

The short answer is yes, but it’s not as straightforward as it seems. While it’s technically legal for companies to initiate layoffs during an employee’s maternity leave, the key lies in the rationale behind the layoff.

If the layoff is genuinely due to business-related reasons unrelated to the employee’s maternity status, it may be considered lawful. However, if the layoff is directly linked to the employee’s maternity leave status, it could constitute discrimination and be subject to legal action.

Example 1: Legally Laid Off While on Maternity Leave

Let’s examine a scenario where a layoff during maternity leave may be justified:

Jane, an employee of Pennsylvania Manufacturing, has been on maternity leave for two months. However, circumstances have shifted drastically during her absence. The plant where she was employed is now undergoing closure, leaving no viable options for Jane to continue her employment upon her return from maternity leave. Despite her absence, the decision to lay off Jane is directly tied to the company’s operational needs rather than her maternity leave status. Even if Jane were not on maternity leave, the same outcome would have transpired due to the plant shutdown. Therefore, the employer’s decision to lay off Jane is supported by legitimate business imperatives.

In this situation, the employer would then want to handle the rest of the layoff process as thoughtfully as possible. Download our layoff script for five simple steps to crafting empathetic notifications for your next layoff event.

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Example 2: Illegally Laid Off While on Maternity Leave

Now, let’s look at an example that would be considered illegal:

Jill, an employee of Jayhawk Medicine, has been on maternity leave for a month. However, upon her return, she is unexpectedly laid off by her boss, who expresses frustration over the additional workload caused by Jill’s absence. It’s evident that Jill’s termination is directly linked to her maternity leave, constituting a clear violation of employment law.

Can a Company Lay Off During Paternity Leave?

Similar to maternity leave, companies can technically initiate layoffs during an employee’s paternity leave. However, as with maternity leave, the legality of the layoff depends on whether it is genuinely based on non-discriminatory, business-related reasons.

Have You Considered All Possible Options?

It’s important to recognize that legality does not equate to ethicality. Considering the long-term ramifications on your organization’s employer brand and your ethical obligation to treat employees fairly, your human resources team should exhaust all possible avenues to support individuals on maternity or paternity leave before resorting to layoffs.

It’s advisable as a best practice to offer extended severance packages based on the remaining leave time of the individual being laid off. For instance, if your standard severance package comprises five weeks’ pay and the employee has six weeks of maternity leave remaining, their severance should reflect a total of eleven weeks.

It can also be valuable to include outplacement services with your severance package as another means of ensuring a smooth and supportive transition for your laid off employees.

Before making any decisions regarding layoffs for employees on maternity or paternity leave, it’s crucial to seek guidance from your corporate counsel or attorneys. Our intent is solely to provide information, not legal counsel. Given the variations in layoff laws across countries and states, thorough examination and consultation are imperative before taking any action.

Does FMLA Protect You From a Layoff?

The FMLA provides certain protections for employees who need to take time off for family or medical reasons, including the birth of a child. Under FMLA regulations, eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave per year. This means that, upon returning from maternity leave, employees should generally be reinstated to their original position or an equivalent one.

What Are the Elements of Retaliation Under FMLA?

Retaliation against employees for exercising their rights under the FMLA is illegal. If an employer takes adverse action against an employee–such as termination, demotion, or denial of benefits–because they took FMLA leave or complained about FMLA violations, it could constitute retaliation.

To prove retaliation under FMLA, employees must demonstrate that they engaged in a protected activity (such as taking FMLA leave), that their employer took adverse action against them, and that there is a causal connection between the protected activity and the adverse action.

What Are Two Reasons an Employer Can Legally Refuse to Reinstate an Employee to Their Same Job After They Return from FMLA Leave?

While the FMLA mandates job protection for eligible employees, there are circumstances where employers can legally refuse to reinstate an employee to their previous position. Two common reasons include:

  • Lack of position availability: If the position held by the employee before taking FMLA leave no longer exists due to legitimate business reasons, such as downsizing or restructuring, the employer may not be obligated to reinstate the employee to the same position.
  • Failure to provide required documentation: Employers may require employees to provide medical certification of their need for FMLA leave. If an employee fails to provide the necessary documentation within the specified time frame, the employer may deny reinstatement rights.

Layoffs and Maternity Leave: Key Takeaways

So can you be laid off while on maternity leave? As we now know, the answer depends on the reason behind the layoff and the legal guidelines set forth by the FMLA. By adhering to legal requirements and ethical principles, organizations can foster a supportive and inclusive workplace culture that values the well-being of all employees, including those on maternity or paternity leave.

Here are the key takeaways:

  • Layoffs during maternity leave are legally permissible if they are genuinely based on non-discriminatory, business-related reasons unrelated to the employee’s maternity status.
  • Terminating an employee solely due to their maternity leave status constitutes discrimination and is illegal.
  • Organizations should prioritize ethical treatment of employees and consider alternative solutions before resorting to layoffs during maternity or paternity leave.
  • Offering extended severance packages based on remaining leave time, as well as outplacement support, can mitigate the financial impact on laid off employees.
  • Before making any decisions regarding layoffs, it’s important to consult with corporate counsel or attorneys to ensure compliance with relevant laws and regulations.
  • The FMLA provides job protection for eligible employees taking maternity or paternity leave, mandating reinstatement to their original position or an equivalent one upon return.
  • Retaliation against employees for exercising FMLA rights is illegal and can lead to legal consequences.
  • Employers may legally refuse to reinstate employees to their previous position if it no longer exists due to legitimate business reasons or if required documentation for FMLA leave is not provided.

If you’re looking for more guidance for your upcoming layoff event, click below to speak with one of our experts and learn how we can help you navigate this difficult process and provide the best support for your impacted employees.

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Cynthia Orduña

Cynthia Orduña

Cynthia Orduña is a Career and Business Coach with a background in recruiting, human resources, and diversity, equity, and inclusion. She has helped 50+ companies around the world hire and retain talent in cities like LA, SF, NY, Berlin, Tokyo, Sydney, and London. She has also coached over 300 people, from entry to senior levels, in developing their one-of-a-kind career paths, Her work has been featured in publications such as Business Insider, The Balance Careers, The Zoe Report, and more. To learn more you can connect with Cynthia on LinkedIn.

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