Can I Be Laid Off While on Maternity Leave (or Paternity Leave) | JobSearchTV.com
By Jeff Altman, The Big Game Hunter
This is a situation that many people worry about. These are how the rules work.
When You’ve Been Made Redundant, Fired, Laid Off, RIF’d
Can I be laid off while I’m on maternity leave? Or on paternity leave? This is a common scenario that people face much too often. And I decided I would go to the Society of Human Resources Management to make sure I had the right answer and how it works.
The answer comes down to you can’t be laid off because you’re on maternity leave, or because you’re on paternity leave. The employer has the responsibility of proving that the layoff was not related to FMLA leave (Family and Medical Leave Act) departure. For that reason, employers have to be cautious when laying off or terminating an employee on FMLA leave, before taking an action. An employer should make sure that there’s a valid business reason for laying off the employee, that the employee would have been laid off even if he or she was working and not taking FMLA leave. And that there is appropriate documentation to justify the action. And then they recommend that the employer consult legal counsel.
What this comes down to as I said earlier, it can’t be because you’re on a leave. It’s you would have been laid off whether you’re on this leave or not that comes into play. So can they do it? Yes, they can. Then you demonstrate that this is some version of retaliation for taking a leave. I’m sure it’s hard to do. But the question wasn’t that. The question was, can they do it? And the answer is yes.
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The answer is a little different in Canada
@D, How is it different? Adding that as a comment will help others.
@JobSearchTV In Alberta, you can not be laid of while on mat leave or parental leave unless the company is no longer doing business. They are also obligated to offer you alternative open positions if they discontinue yours. In fact, even if the company resumes operations they still have to offer you your position back, up to 52 weeks after laying you off!
Thank you! Is that just provincial of National?
@JobSearchTV That is provincial, however, similar rules and laws apply across the board. Alberta is probably the most explicit.
@D Thank you for contributing.