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Do I have to terminate an employee who doesn't return from maternity leave? Or is it best to keep them on the books?

Irvine, CA |

We are a small business (under 20 employees) in the state of California. One of our employees had a c-section in July. She has exceeded her 20 weeks maternity (8 federal & 12 state for bonding). She says she plans on coming back "someday", perhaps after a year or two. Do we need to terminate her to close out her active employee file? Or take her lack of return as a resignation? What are the benefits/drawbacks to either? How should we proceed with closing out her file?

Attorney Answers 2


The fact that she has exceeded her maternity leaves is not, in itself, enough to say that she is not entitled to more unpaid leave. Both FEHA and Title VII might entitle her to more unpaid leave if she is suffering from a disabling condition for which additional unpaid leave would be a reasonable accommodation and which would not cause you undue hardship. If that were the case, she would have to inform you of the need for such accommodation by doctor's note or otherwise.

Given her statement that she wants to come back someday suggests this might not be based on a disabling condition, but instead on a lifestyle change. If her decision to not return after her leaves is a personal one unrelated to a disability, then she has elected to quit.

The prudent approach would be to ask the employee if she is suffering from any disabling condition for which she needs additional unpaid leave, and if so, ask the employee to provide you with medical documentation of that fact. Alternatively, indicate that if no such need exists, she is to return to work by X date or she will be deemed to have abandoned her job and quit.

Good luck to you.

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Neil Pedersen

Neil Pedersen


I need to note a correction. I said Title VII when I meant to say ADA. Otherwise the answer is the same.



Thank you for your help! I think I may not have been clear in my question though... Am I required to make her a non-employee, or do I just leave her as "on leave" ? Are there repercussions for leaving it alone, or a specific reason to terminate (quit) her?


In addition to Mr. Pedersen's excellent advice, it would not hurt to call her and ask what would work best for her situation, i.e. termination or resignation, if she decides not to come back.

Best regards,

David A. Mallen

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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