Sometimes, employees who have just given birth stay out longer than expected. After using up their available 12 weeks’ unpaid, many new mothers request additional time off.
Advice: If you agree to additional time off to be covered by a short-term disability policy, check to see if that policy includes job protection. If it doesn’t, you don’t have to hold her job or even reinstate her. That’s true even if she wants to return while you are actively looking for a replacement.
Don’t, however, start the search while the employee is still onleave. Never say anything to indicate that her past or future childbearing is the reason you don’t want her back. That may be retaliation for taking FMLA leave or sex discrimination under Title VII or the .
Instead, stick to the facts. Tell her that she has used up her FMLA leave and that the disability leave policy doesn’t promise reinstatement for anyone who takes extended leave.
Recent case: Maria Infante tookfor the birth of her child, first using her FMLA leave entitlement. Then she used the company’s short-term disability leave plan to extend her leave five times. Once, she even asked for the extension with just one business day’s notice. The disability plan did not include a reinstatement guarantee.
When Infante’s doctors cleared her to return to work, her employer said her job was no longer open, but she could apply for other positions. She did, but wasn’t rehired. She sued, arguing that it wasn’t logical for the company to seek a replacement while she was willing to come back.
The court said Infante didn’t prove any kind of discrimination. Since the disability policy didn’t guarantee reinstatement, firing her was legal as long as there was no evidence of sex discrimination. (Infante v. Ambac Financial Group, No. 06-0576–CV, 2nd Cir., 2007)
Final note: Don’t reinstate someone who takes extended leave for some other condition, and fire those who take childbearing leave. Treat everyone alike.