Free Initial Consultations Are Available Now

  1. Home
  2.  → 
  3. Employment Law
  4.  → Can your employer fill your job while you’re on maternity leave?

Can your employer fill your job while you’re on maternity leave?

When you’re on maternity leave, your only concern should be looking after yourself and spending time with your new baby. 

So, what happens if, while you’re off, your employer tells you that they’re looking to find someone else to fill your role or that it no longer exists? 

Can they do that? 

The law protects pregnant women and new mothers

There are federal laws in place to make sure pregnant women are given the time they need to prepare for giving birth. 

Under the Family and Medical Leave Act women can take up to 12 weeks of unpaid leave for the birth of a child and to care for a newborn child. An employer cannot fill the position or make the employee redundant during this period. 

When an employee returns from FMLA leave, the law states that they must be restored to the same or “equivalent job”. 

What this means in practice is that an employee does not need to be reinstated in their exact job. If their employer puts them in another position, it has to have the same pay, benefits, shift pattern and location. 

The limitations under FMLA

An employer can lay off an employee during FMLA leave if they can prove that this would have still happened had they not been on FMLA leave at the time. 

For example, this would apply in circumstances where overtime was decreased or no longer available. This must have been the case regardless of whether the employee was on FMLA leave at that time or not. 

Actions employees can take

Unfortunately, despite the intention of the FMLA, some employees still find themselves unfairly out of a job while they’re on maternity leave. 

If this happens to you, you may have an action for unlawful discrimination against your employer. 

Losing your job is always a worrying time but especially when you have a baby to look after. Seeking legal guidance can help you make sure you know what your rights are.