Pregnant employee wants to be laid off. Can I do that?

I have an employee who is pregnant and wishes to be laid off from our firm due to personal marital issues and due to not being able to perform her duties as an employee at this time. She has had numerous absences and unable to focus or keep up with her work. She feels that she cannot perform her functions as an employee and wants to be laid off so that she can claim unemployment. She indicated that she will not file a claim against us due to the termination. If the firm requests that she states it in writing and signed by both supervisor and her, does she have any legal claims later?

Posted 10-18-2011

Ann Kiernan replies:

I think there is a way to terminate her employment and enable her to get benefits, but not through unemployment. Based on the information you have provided, this would not be a layoff, since there is no lack of work for her to do. It would violate the law in your state, California, if you were to give a false reason for her termination or fail to provide the correct information if she falsely claimed that she was laid off. Also, since she is unable to focus and perform on the job, she would not be considered able and available to work, which is essential to her ability to collect benefits.

Since California is one of the states that provides temporary disability benefits, you could terminate her and she could file for TDI, assuming that her doctor would certify that she is unable to work. After the baby comes, she can collect up to six weeks of additional benefits under California’s family leave insurance program.

If you want her to agree in writing that she will not sue your company because of her termination, you will have to provide something of value in exchange for her agreement. This is called “consideration”, and is standard contract law: Each side has to give something to the other. Typically in these matters, the employer agrees to give some severance pay, or to continue to pay for health benefits for a period of time, or to provide outplacement assistance, or to let the employee keep a cell phone or other company equipment.

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