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Terminating an employee who is on maternity leave

The days and weeks after the birth of a child are unlike any other. It is an important time for mom to bond with baby, and for her to enjoy the newest miracle in her life. It is also a time in which mom's body is run-down and sleep seems like a luxury. These, and many other factors, make returning to work immediately a less than ideal option for many mothers.

When an employer does not provide paid leave, do moms in New York have a right to time off? Unfortunately, no federal law exists that provides standard maternity leave, but there are other options. One of which is leave under the Family and Medical Leave Act (FMLA).

Mothers in New York and around the country who are covered by FMLA may avail themselves of that act, which provides for up to 12 months of unpaid leave.

This law protects employees and sets many rules that employers are required to follow. For example, employers must allow an employee to return to work in the same or in a similar position to the one the employee held before going on leave. Employers must also offer the same health care benefits to workers while on leave as they had while working.

The Pregnancy Discrimination Act specifically bans employers from basing any employment decision on whether or not a worker is pregnant. This includes decisions involving pay, advancement opportunities or training opportunities. In addition to the federal legislation, 18 states as well as the District of Columbia have made it illegal to discriminate against a pregnant worker. However, the scope of protection varies among these laws. 

However, employers may terminate workers who are on leave under FMLA. Whether or not the termination is legal depends on the facts in the case and the reason given for the termination. In most cases, being terminated just for taking leave to have a child would be seen as an illegal act by an employer.

Workers who are terminated while on family leave may wish to speak with an attorney. An attorney may be able to review the case to determine whether or not the termination was justified. Legal counsel may use employment performance or medical records as well as witness testimony to help establish that an employee was discriminated against. This may result in reinstatement with full pay and benefits.

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