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Do I have to hold my employee's position for her if she goes on maternity leave?

Los Angeles, CA |

Hello, I have an employee who will be going on pregnancy/maternity leave soon. She has informed me that she will likely be out for about 3 months. I will need to hire someone to cover her while she's gone, as my other employees will not be able to cover all of her duties.
My question is, Do I need to hire someone, only to fire them 3 months later when the employee returns from pregnancy leave? Or can I put the employee into another position when she returns from pregnancy leave?
If you could point me to any laws that address this issue, I'd appreciate that very much.

Thank you.

Attorney Answers 7

Posted

The answer to your question depends on the size of your business. How many persons do you employ?

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about 60

Faith Christine Lisle

Faith Christine Lisle

Posted

Employers with over 50 employees must comply with the California Family Rights Act of 1993 (CFRA). Your employee may be eligible for up to 12 workweeks in a 12-month period for the birth of a child. I would recommend you contact an experienced employment attorney to determine your employee's eligibility, provide you with information related to requiring medical certification from the employee's health care provider prior to allowing leave and your obligations as an employer to return the employee to the same or similar position after she returns. Finally, the leave taken may impact benefits or seniority date so it is important to provide the employee with complete information regarding these issues. I also agree with Ms. Pitt. The use of a temporary employee may prevent any sticky situations upon the return of your employee, providing that the job duties can be performed appropriately by a temporary employee.

Posted

You really should consult with an employment law attorney over the telephone or in person (for a free consultation) and explain the the attorney the particulars of your business and the situation. The number of employees and the particular job duties would be important to know.

Best of luck.

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Posted

You do not have to hire someone and then fire them. You can just hire a temporary worker with the understanding that it is only a 3 month assignment. This is very common and there are a lot of temporary agencies out there who can help you find someone. Many unemployed people are using Temp Agencies these days.

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Posted

Thank you for your response. I am aware that I can hire a temp worker, but does the law REQUIRE me to do so? Or can I hire a permanent employee and move the returning employee to a different position?

Pamela Octavia Pitt

Pamela Octavia Pitt

Posted

It depends on the size of your company and what kind of job you are thinking of substituting. This is why the others recommend you go to an employment attorney - so you can discuss your own specific facts. Good luck.

Posted

I agree with my colleagues that you should consult with an employment attorney as soon as possible to address the specifics of your situation. You wan to ensure that business operates without any problems while also not potentially exposing yourself to any liability for perceived discriminatory treatment toward a pregnant employee that is going on leave. Many attorneys provide free initial consultations. Good luck.

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Posted

FMLA applies to all:
public agencies, including State, local and Federal employers, and local education agencies (schools); and,
private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year - including joint employers and successors of covered employers.
To be eligible for FMLA leave, an employee must work for a covered employer and:
have worked for that employer for at least 12 months; and
have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:
for the birth of a son or daughter, and to care for the newborn child;
for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
to care for an immediate family member (spouse, child, or parent — but not a parent "in-law") with a serious health condition; and
when the employee is unable to work because of a serious health condition.

Leave to care for a newborn child or for a newly placed child must conclude within 12 months after the birth or placement.

The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. CFR Section 203) Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition. Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer's approval.

Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less. (See CFR Section 825-205)

Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job.
Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave.

A covered employer is required to maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if the employee continued to work.
Generally, upon return from FMLA leave, an employee must be restored to his or her original job, or to an "equivalent" job, which means virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.

In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using (but not necessarily during) FMLA leave.

Hope this helps

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Posted

Hello.

You can either allow the employee to return to her previous position or another vacant position for which she is qualified and which is similar in terms and compensation.

Thanks,

Arkady Itkin
San Francisco Employment Lawyer

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Posted

As others have indicated, you will need to speak with an employment law attorney. However, assuming that FMLA, CFRA, and PDL apply to both you and the employee (which, in part, depends on the number of employees you have), here's a brief overview: Under appropriate circumstances, FMLA (which offers up to 12 weeks of leave) can run concurrently with PDL (which offers up to 4 months of leave) . However, CFRA does not run concurrently with PDL.

A pregnant employee must be disabled by pregnancy or have a pregnancy-related disability to qualify under PDL. Since CFRA leave does not run concurrently with PDL, when the employee's doctor sends her back to work, she will be eligible for up to 12 weeks of CFRA leave for baby bonding.

Generally, it is recommended that you not terminate a pregnant employee while she is on leave. You can hire a temporary employee to take her place for the time she's out.

FMLA, CFRA and PDL laws are complicated and can lead to employer liability if not executed properly. Therefore, it is important that you consult with an employment law attorney regarding these issues.

Additional Disclaimer: This response is for general purposes only. Nothing contained in this message should be construed as creating an attorney-client relationship or the rendering of legal advice. Unless a formal written retainer agreement has been fully executed between you and me, I will not take any action to protect your rights. Moreover, any response on Avvo.com is restricted to the limited information provided by you. You should contact an attorney for legal advice.

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