Written by attorney Vincent Peter White

What happens when a pregnant mother decides not to return to work after her FMLA Leave?

The Family Medical Leave Act ("FMLA") provides up to 12 weeks of unpaid time off to employees experiencing a family emergency or even a personal health issue, so long as their employer is of sufficient size to fall under the Federal law. Employees generally are entitled to be restored to the same or equivalent position upon return from leave under the Family and Medical Leave Act.

Hypothetical Situation:

A new mother who is out of work on FMLA leave, 8 weeks into her 12 week maximum amount of time, contacts her employer and lets them know that she does not intend to return to work at the end of her leave period. (Note to new mothers: if you receive health care or other time sensitive benefits from your employer, you may wish to wait until the end of your FMLA period to decide to resign!)

When is the new mother's employment considered officially over?

The Department of Labor states in the relevant regulation:

"If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so."

Will the employer be able to recover healtchcare costs expended for the employee's benefit while she was out on leave?

"Under the regulations, the employer may recover its share of health plan premiums during a period of unpaid FMLA leave from an employee if the employee fails to return to work, unless the reason for not returning to work is due to, among other things, "circumstances beyond the employee's control. The Department of Labor makes clear that this phrase is "necessarily broad" and includes a situation where the employee chooses to stay home with a newborn child who has a serious health condition. However, the DOL acknowledges that this caveat clearly does not cover a situation where the employee chooses to stay home with a "well, newborn child." (Quoting: "")

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