Matern Leave - holding position open

Cheryl Cloes

We are a small company, under 20 people, with an employee who will be going on maternity leave. We are hoping she will return, but will not commit to returning and wants us to leave the position open. How long are we required to leave the position open for her, pending her decision to come back or not?

System

Upon her return from pregnancy disability leave, the employee must be reinstated to her original position unless: (1) the job has been eliminated because of legitimate business reasons unrelated to the employee's leave; or (2) the employer's ability to operate its business in an efficient and safe manner was substantially hindered by leaving the position open or assigning a temporary worker to the job. If either exception is met (and you should discuss your specific facts with counsel to ensure that you meet the exceptions), you must provide the worker with a comparable position. If there is no comparable position, you may not be required to meet this standard -- again consult counsel to protect yourself from liability. Discrimination, harassment, and retaliation against pregnant worker is prohibited and you should be careful to avoid employment actions that may create the perception of unlawful behavior.

Rockie

FMLA does not require that you reinstate to the original position - only a position with same pay and benefits. This may help her make a decision when she finds out that you don't have to "hold" a particular position. When you explain to pregnant employees that they are entitled to FMLA and the attendant benefits, they usually are not so hesitant to be forthcoming about their plans. I usually try to do this as soon as I am informed of a pregnancy when I give them the medical paperwork to be completed. It just sounds like she hasn't made a decision as to whether she wants to come back or not.

Margaret Morford

One other practical suggestion. Many employees are afraid to tell you that they are not going to return from maternity leave because they are afraid you will terminate them and cut off their leave,insurance and benefits. Sit down and explain to the employee that you will grant them leave until they are released to return to work or their leave runs out regardless of whether they return to work or not. Then tell them that you'd just like to get an idea of their plans so that you can make plans accordingly. You may need to give it to the employee in writing to assure them. Once you have told her this, she may tell you she's not planning to return. Then you can plan to replace her and train her replacement rather than waiting until she's ready to return to find out she's not coming back. But also remember, she may not have decided what she is going to do, so don't push her for a definite answer.

Margaret Morford
theHRedge

Gillian

Valerie Masters response reflects the California regulations - the circumstance is covered by our Pregnancy Disability Leave regulations and which cover all employers with five or more employees.

joyce

Is a company with only 20 employees subject to FMLA leave? Unless it has been changed since my last copy of the reg, I believe the number of employees is 50 as far as Federal law goes. However maternity leave must be treated the same as any other disability leave.

Gillian

You are correct, Joyce, regarding FMLA. You are also correct regarding treating the disability the same as others, with a big exception which applies to this inquiry. In California, pregnancy is treated differently and, in many ways, more favorably than other disabilities.