Missing Moms

Can an employer require employees to return after maternity leave?

Back Web Only Dec 8, 2014 By Coral Henning

I run a small business of about 25 employees. Twice in the past two years, I’ve had employees quit directly after taking maternity leave (we offer 3 months paid and an additional 3 months unpaid). Prior to their departures, it was understood that they would return to work. Both times this has caused understandable upheaval in the office. What questions, if any, can I ask employees taking maternity or paternity leave? Can I require them to come back to work in order to take the leave? Are there any options for me to avoid this happening in the future?

It is very generous of you to offer so much maternity leave, as your small business is not required to under either the Federal Family Medical Leave Act, or the California Family Rights Act. Those two acts only apply to employers with 50 or more employees, and they only provide for 12 weeks of unpaid leave. You must still, however, comply with the Federal Pregnancy Discrimination Act, and the California Pregnancy Disability Leave Act, which apply to private employers of 15 and five or more employees, respectively.

The Federal Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. The California Pregnancy Disability Leave Act states, among other things, that you must allow a female employee disabled by pregnancy, childbirth or a related medical condition to take leave for a reasonable period of time, not to exceed four months, and thereafter return to work.

As long as you do not discriminate, you may certainly ask your employees if they intend on returning to work, and when they intend to do so. The California Pregnancy Disability Leave Act and the California Family Rights Act both require employees who plan to take leave to give their employer reasonable notice of both the start and duration of their leave, so there is no reason you should not be able to ask those questions about a paid maternity leave.

Although I could not find any discussion or cases specific to your issue in the legal treatises I consulted, it seems that as long as you do not discriminate you could conditionally grant paid maternity leave upon a promise to return to work with a contractual agreement. In my research I came across several mentions of such contracts, stating, for example, that if an employee did not return to work for a period of time equal to the paid leave period, the employee would have to repay the benefits received during the leave.

I would definitely consult an attorney before going down this road, however. Think of the negative publicity that would ensue if, contrary to both employer and employee’s best-laid plans, a mother or father simply could not tear themselves away from their infant and go back to work.


Visitor (not verified)December 9, 2014 - 1:37pm

I don't have kids, but I do have a lot of friends that do. I think when women go on maternity leave they intend to go back to work, but once they have the baby a lot of times families figure that they can make it work if the mother stays home. Couldn't the fact that the employee change their mind and would rather reside at home with their baby be factor in them no returning to work? Ultimately, an employee is choosing to work for you and should be able to leave at any time.

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