fired while on maternity leave?

What is the name of your state? NJ

A friend of mine was working for a company for 8 months before she went out on Maternity leave. Unfortunately, she had serious complications and was out from the 2nd week of May until current. She got clearance from her OB to return to work on Sept. 13th. So, she phoned her employer this morning to let them know she's clear to return on the 13th, only to be told that they filled her position and she's fired. She did keep in contact with them the entire time she was out - updating her boss on her medical conditions and lenght of time she'd be out.

Can they just fire her while she's on medical leave? Isn't there some time of law that protects her? I've heard that companies do not have to hold your exact position open for you - but they do have to give you a comparable job with similar salary upon your return - is this true??

Unless NJ has some sort of maternity/medical leave law, then your friend was not entitled to ANY leave at all. The federal FMLA applies to employees with over 12 months of employment; your friend had only worked there 8 months. They didn't have to provide her leave at all.

As long as they didn't treat her any less favorably than they would a similarly situated employee BECAUSE she is pregnant, then the employer hasn't violated any laws. I tend to doubt that the employer has a history of extending 4 months of leave to employees who have only been with the company eight months.

By the way, even if she'd qualified for FMLA, the employer would only have had to extend 12 weeks of leave time to her. After that, they are free to fill her position and terminate her employment if they wish to.

Contrary to popular belief, it is not illegal to fire someone while on any kind of medical, maternity or disability leave, as long as they receive all the time they are entitled to under Federal or state law.

As far as Federal law goes, there are no circumstances in which an employer is required to hold an employee's job for longer than 12 weeks. If an employee is not able to return within that period of time, they can legally be fired, regardless of how legitimate the need for additional medical leave may be. If they DO return at any time within that 12 weeks, they MUST be returned to either their own position or one that is equal in ALL respects, but once the 12 weeks is up, it is entirely up to the employer whether to hold a job for the employee at all, let alone their own job.

Although some states do provide additional medical leave, or maternity leave, NJ does not. Therefore, Federal law applies and at the end of 12 weeks (sometime in mid-July) her employer was at liberty to end her employment.

While it's a shame that they did not make it clear to her what the situation was, they did not break any laws.

Edited to include:

I missed that she had been there only eight months. That being the case, she was entitled only to whatever leave the employer offers to other employees, who are not eligible for FMLA, and who have a non-maternity condition (the examples I generally use are pneumonia and a broken leg). Again, no laws were broken.

jerzigurl77 said:

What is the name of your state? NJ

A friend of mine was working for a company for 8 months before she went out on Maternity leave. Unfortunately, she had serious complications and was out from the 2nd week of May until current. She got clearance from her OB to return to work on Sept. 13th. So, she phoned her employer this morning to let them know she's clear to return on the 13th, only to be told that they filled her position and she's fired. She did keep in contact with them the entire time she was out - updating her boss on her medical conditions and lenght of time she'd be out.

Can they just fire her while she's on medical leave? Isn't there some time of law that protects her? I've heard that companies do not have to hold your exact position open for you - but they do have to give you a comparable job with similar salary upon your return - is this true??

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She might have a claim for wrongful termination based on gender discrimination. I don't know how strong of a case she might have based on your post. Tell your friend to consult a local employment law attorney. Some plaintiff's attorneys don't charge for the first consultation.

There is absolutely nothing whatsoever in the post that even remotely points to a gender discrimination claim.

Unless the poster's friend is able to point to a male employee who was employed for only 8 months, missed six months of work and was NOT fired, then attempting to file a gender discrimination claim would be a waste of everyone's time. Such a claim simply won't fly.