Sometimes, it’s obvious that a new mother can’t (or won’t) return fromwithin any reasonable time frame.
Take, for example, someone who requests a series of leave extensions for medical reasons. You approve them over several months until she’s used up all available accumulated leave—and then approve unpaid extensions in the hope she’ll return soon. At that point, you are free to ask if her doctor can provide a definite return date. If the answer is no, you can safely terminate her.
Recent case: Xiao, a cashier, became pregnant. She had a tough pregnancy and took three months off before having a caesarian section. Over the next few months, she got several extensions to her maternity leave, including unpaid time off under a discretionary leave program. Finally, after she had been gone for eight months, Xiao’s employer terminated her.
She sued, alleging she should have received more time off as an accommodation.
The court disagreed, noting that she could not get her doctor to provide a return date. That made her ineligible for more time off. (Zhu v. Tawa Supermarket, No. B240193, Court of Appeal of California, 2nd Appellate District, 2013)
Final note: It’s wise to consider offering generous extended unpaid leave when it’s clear a disabled employee needs a bit more time to recover.
It looks good later if the employee sues. You’ll seem reasonable, the employee won’t.
- Employees can't claim retaliation if they're not FMLA-eligible
- Part-time, 'as-needed' employees can still sue for bias
- Firing after delivery can still be pregnancy discrimination
- No unemployment for substitute teachers who turn down equivalent positions
- FMLA leave to pitch in with newborn grandchild's care?