termination during maternity leave

I have been on maternity since Dec 2011. I recently applied for for an extended leave through my employer & was informed by the leave of absence department that I had been terminated (the term date was the same date as my first day of maternity leave). They said I was term'd due to "no hours worked" . They also said I had never put in for a leave of absence for maternity leave, I did and had given my supervisor documentation from my doctor. My md office has proof that they sent it via fax to my employer.
Can I be terminated while on maternity leave?

4 answers  |  asked Feb 14, 2012 1:05 PM [EST]  |  applies to California

Answers (4)

Marilynn Mika Spencer
Congratulations on your pregnancy!

Pregnancy discrimination is unlawful under California and federal law.

FEDERAL RIGHTS: In 1978, Congress amended the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, by passing the Pregnancy Discrimination Act.

Under the Pregnancy Discrimination Act, "discrimination" means to treat a pregnant employee differently from non-pregnant employees, and adversely. The employee must be able to make a connection between the discriminatory treatment and the protected status (being pregnant). In other words, the employee will have to show that her pregnancy is reason the employer is treating her adversely. There are various ways to do this. Negative comments from supervisors or management; a sudden change in treatment (for the worse) as soon as or shortly after the employer learns about the pregnancy or the effects of pregnancy; or other incriminating conduct.

For information on pregnancy discrimination, see:

For information on the Pregnancy Discrimination Act, see:
http://eeoc.gov/laws/statutes/pregnancy.cfm This law is enforced by the Equal Employment Opportunity Commission (EEOC). www.EEOC.gov

Under federal law, leave taken for an employee's incapacity due to pregnancy, childbirth or related medical conditions is governed by the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA), just like leave for any other “serious health condition” of an employee. See my Avvo guide to the FMLA for more information: http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.

CALIFORNIA RIGHTS: California employers must comply with federal law, as above, and also must comply with state law. The California pregnancy disability leave law, Government Code section 12945(a) (PDLL), is part of the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA). The PDLL requires employers to provide employees up to four months of unpaid leave for disability caused by pregnancy, childbirth or a related medical conditions.

Under some circumstances, an employer may be required to transfer an employee affected by pregnancy, childbirth or related medical conditions to a different job.

California has its own family and medical leave law, the California Family Rights Act, Government Code section 12945.2 (CFRA). It is substantially similar to the FMLA, but an employee's incapacity due to pregnancy, childbirth or related medical condition is not included in the definition of “serious health condition.” This is usually beneficial to the employee because CFRA leave and pregnancy disability leave are two separate and distinct rights under California law. They do NOT run concurrently, as they do under the FMLA. Instead, an employee in California may take four months of PDLL plus 12 weeks of family leave, provided of course that the employee meets the other conditions of these laws.

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile

posted by Marilynn Mika Spencer  |  Feb 26, 2012 6:54 PM [EST]
Richard J. Vaznaugh
This is likely an illegal termination in violation of the Pregnancy Disability Leave Law or the California Family Rights Act, the FMLA and possibly the ADA and its state equivalent.

The key issue will be how many employees the employer has and what form of request(s) for leave were submitted. This last issue should be analyzed by an attorney specialized in these types of cases, however the law on notice in this circumstance generally favors employees so that if you used common sense, you probably did enough.

I could look more closely at your case, if you want to contact my office. Sincerely, Richard Vaznaugh

posted by Richard J. Vaznaugh  |  Feb 14, 2012 4:05 PM [EST]
Arkady Itkin

Generally, this kind of termination would be unlawful, especially if the reason for your extended leave was related/serious medical condition such as pregnancy related disability or associated medical complications.

Thanks, and if you would like to discuss this further, feel free to follow up.

Arkady Itkin
San Francisco & Sacramento Employment Lawyer

posted by Arkady Itkin  |  Feb 14, 2012 1:34 PM [EST]
Marcus Jackson
If you can prove that your employer had proper notice of your request for maternity leave then you may have a strong case of denial of maternity leave and wrongful termination. You should consult an employment attorney in your area, who can review the details of your situation, for further information.

posted by Marcus Jackson  |  Feb 14, 2012 1:20 PM [EST]

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