Is it legal to fire a person on authorized maternity leave and replace her with a new hire? 08-04-2010
Ann Kiernan replies:
The answer depends on the particular facts involved. Here are a couple of possibilities:
- If the woman is eligible for FMLA leave, she has the right to return to her job (or an equivalent). Replacing her with a new hire would violate federal law, unless the employer can prove that the woman would have been terminated anyway, even if she had not been on leave. The only cases I am aware of where the employer has met its burden of proof are those where economic conditions have compelled a reduction in force, which includes workers out on FMLA leave, or where, while the worker is out on leave, the employer has uncovers evidence of gross misconduct.
- If the woman is not eligible for FMLA leave (or a state law equivalent), you can lay off or terminate her, as long as you have objective, verifiable documentation of your legitimate business reasons for selecting the particular employee. Firing a woman because she is pregnant would violate state and federal discrimination law.
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| Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first. |
