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SEPTEMBER 2013 NEWSLETTER

HOW AN EMPLOYER CAN PROTECT ITSELF WHEN TERMINATING AN EMPLOYEE ON MATERNITY LEAVE

As an employer it is always a pressing concern to limit one’s liability to litigation following the termination of an employee. This concern is even more pronounced when the employee being terminated is on maternity leave. This is because the Family Medical Leave Act (“FMLA”) entitles leave to employees for maternity, illness or to care for a family member. In addition to the FMLA, employees on maternity leave have legal protection under the Pregnancy Discrimination Act (“PDA”). Therefore, employers need to set sound policies and take the necessary precautions to ensure they do not violate any existing federal or state laws when terminating an employee who comes under the protection of the FMLA and PDA.

I. The Family Medical Leave Act

The FMLA applies to public agencies and private employers with fifty (50) or more employees. In addition, for an employee to be eligible for FMLA protection the employer must have fifty (50) or more employees within seventy-five (75) miles of that employee’s job site and location. However, in order for employees to qualify to FMLA protections and leave they must have worked for their employer for at least twelve (12) months, although this does not have to be a consecutive twelve (12) month period, and have worked a minimum of 1250 hours in the twelve (12) months prior to seeking FMLA protections.

Once an employee qualifies for protections under the FMLA they are entitled to twelve (12) weeks of leave time within a twelve (12) month period. An employee can take such leave for maternity issues, including before the birth for medical appointments, morning sickness, or required bed rest, and time for and following the birth of their child. FMLA leave time can also be taken after a qualified employee adopts a child. Both the mother and father are entitled to leave time in order to bond with the new addition to their family; however, this leave must be taken within a year of the child’s birth or adoption. FMLA leave is job-protected time off and is unpaid leave. This means that after taking FMLA leave the employee can return to their position or one that is nearly identical. While the FMLA mandates this job-protected leave time an employee must still follow the rules and regulation of employer’s regarding notice and time off.

Therefore, if you wish to terminate an employee who is using FMLA regulated leave time you must ensure that the leave time is not a factor in making the decision to terminate the employee. For example, an employer could terminate an employee on maternity leave for misconduct of the employee discovered while that employee was on leave, but an employer could not terminate that employee for taking leave related to the birth of their child. It is important that an employer retains records and documentation that relate to the employee’s termination so if litigation arises or is threatened the employer could properly respond to any allegations made by the employee.

Another factor that will be heavily considered when terminating an employee on FMLA leave is the timing of the termination as it relates to the reason for termination. For example, if an employee goes on maternity leave and while on leave the employer discovered that the employee was embezzling company funds then there is a reason to terminate the employee while they are on maternity leave that is unrelated to the leave. In contrast, if the embezzlement was discovered a month before the maternity leave was taken and the employee was only terminated once they elected to take maternity leave, the Court may find that the termination is related to the FMLA leave of the employee and not the stated 4 misconduct. Accordingly, it is important for an employer to take quick action and not delay disciplinary actions until an employee elects to take FMLA leave.

Although Pennsylvania is an at-will employment state, meaning an employee can be terminated for any legal reason, the employer must have documentation or records demonstrating that the employee’s termination was not based on FMLA leave and that other factors were considered, such as employee downsizing, elimination of certain departments and/or employee misconduct.

Additionally, it may be possible to terminate an employee who does not follow the FMLA requirements when taking leave time. When possible an employer should be given thirty (30) days notice of an employee’s intention to take to FMLA leave. However, with pregnancy and child birth the exact date is often unknown and this requirement can and should be somewhat flexible. If the FMLA leave is related to a sudden or unexpected matter then the employee must give notice to the employer as soon as possible.

Moreover, an employer may request that an employee provide a medical certification from their physician to support that the FMLA leave is related to the medical necessity or maternity. The employee must provide this certification to their employer within fifteen (15) days of the request or the employer may deny the employee’s FMLA leave request.

In the event of a violation, the FMLA authorizes an award of damages- not only against the employer, but also against responsible individuals. The damages can include lost wages, employment benefits, attorneys fees, and “liquidated damages”. The employee can also seek reinstatement and promotion.

II. Pregnancy Discrimination Act

Similar to the FMLA, the PDA offers certain protections to employees who are pregnant or go on maternity leave. However, the PDA focuses on protecting pregnant employees from discrimination as opposed to mandating job-protected leave. Pursuant to the FMLA, an employer cannot discriminate against an employee based upon her pregnancy and birth of her child. While the FMLA covers employees with fifty (50) or more employees, the PDA is more expansive and covers employers with fifteen (15) or more employees.

The PDA does not require that pregnant employees receive special treatment or set time off but requires that an employer treat them the same as any other employee. Mainly, the PDA requires that the employer consistently apply their policies to pregnant and non-pregnant employees. For example, if an employer allows an employee who was in a motor vehicle accident to take three (3) weeks unpaid leave to recover then a pregnant employee may also be entitled to three (3) weeks unpaid leave as a result of her condition.

The purpose of the PDA is to help offset preconceived notions that an employee will be incapable of working due to her pregnancy or impending motherhood. Accordingly, an employer cannot terminate an employee solely because she is pregnant. However, if the employer’s policies allow for the termination of an employee due to excessive absenteeism then a pregnant employee could be terminated for that reason if the policy is similarly enforced against non-pregnant employees. Again, it is important that an employer retain detailed employment files and records to show that their policies are consistently enforced against pregnant and non-pregnant employees.

The penalties for a violation of PDA are the same as those under Title VII of the Civil Rights Act of 1964. Under Title VII, an employer who is found liable for sex discrimination can be ordered to pay damages and provide injunctive relief; to take action to remedy the discrimination. Penalties include:

  • Back pay (compensation for wages lost due to discrimination, such as if an employee was wrongfully terminated or denied a promotion);
  • Out of pocket costs (for example, if an employee was wrongfully terminated and had to pay for health insurance);
  • Injunctive relief, such as reinstatement or promotion;
  • Front pay (money intended to compensate the employee for wages lost from the date of judgment going forward, if she cannot be reinstated right away or the workplace has become so poisoned that reinstatement isn’t a viable option); and,
  • Court costs.

In addition, Title VII allows for an award of damages for pain and suffering (sometimes called emotional distress or compensatory damages) and punitive damages (intended to punish the employer for wrongdoing). Together, these two types of damages are capped at an amount between $50,000 and $300,000, depending on the size of the employer.

If state law also prohibits sex discrimination, it might offer additional damages. For example, some states allow employees to be awarded compensatory and punitive damages without limit. Because these damages often make up the lion’s share of the employee’s remedy, it often makes sense to sue under state law in this situation.

III. Conclusion

Any employer considering terminating a pregnant employee or an employee electing to take maternity leave should contact legal counsel to further discuss the matter and their potential liability. Often Courts will view these terminations on a case-by-case basis and examine the specific facts supporting the termination to determine if the employer is liable for violating the FMLA or PDA. If you have any questions relating to the termination of a pregnant employee or an employee on maternity leave, please contact this office to further assist you.