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?
Employment / Labor Attorney
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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Employment / Labor Attorney
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.
David A. Mallen
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