Answering the question of whether or not you can be fired for taking maternity leave is simple; it is always illegal. However, you can be legally fired while on maternity leave. This is where things get complicated and someone could potentially confuse their firing for being illegal when it is actually legal. The specific reason for being fired is very important in these cases and may be classified as wrongful termination.
If you believe you have been fired for taking maternity leave, or are worried you may be fired for taking leave, you should be aware of the laws that are in place to protect you. If your firing is in violation with one of these laws, then your firing is considered wrongful termination. However, if your firing complies with these laws and just so happens to be before/during maternity leave, then it’s a legal termination.
These cases can be very complicated to determine if they are truly wrongful termination cases. Reach out to a wrongful termination attorney for insight into your potential wrongful termination case. They will have more information regarding employment law and can help you determine whether your termination is wrongful or not.
Wrongful Termination
Wrongful termination is a firing that is illegal, such as violating an employment agreement, breaking state or federal law, or being discriminatory. These are the “automatic” violations that mean the termination is illegal, but there plenty of other ways for your firing to be considered illegal.
It’s important to understand the terms of your employment because it plays a part in dictating what an illegal termination is. The most common form of employment is “at-will”, which means the employer has the right to fire you at their own will. They don’t need a good reason, aren’t required to provide an advance warning and don’t have to follow procedures to fire you. In Virginia, every employee is considered at-will unless there is evidence to the contrary. If you’re an at-will employee, proving your termination was illegal can be a little more difficult if it doesn’t violate state or federal law or is a result of workplace discrimination. Being fired for taking maternity leave would be in violation of these laws because it is considered workplace discrimination.
The Family And Medical Leave Act
One of the laws in place to protect mothers who take maternity leave is the Family and Medical Leave Act (FMLA). The FMLA is a United States labor law established in 1993 and serves to protect employees who must take time off of work for reasons that are protected under this law. It requires employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. These include pregnancy, adoption, foster care, placement of a child, personal or family illness, or family military leave. This law has been violated by your employer if they have fired you for taking maternity leave.
Under the FMLA, you have the right to be reinstated to your former position. If that position is no longer available, then you have a right to a comparable job in terms of salary and benefits. These are the only rights the FMLA protects. So if your entire department is let go, you no longer have the right to a comparable job because you would have been laid off even if you weren’t on maternity leave.
Virginia Human Rights Act (VHRA)
It’s also important to establish if your case falls under the Virginia Human Rights Act as this act directly protects against discrimination. According to the Virginia Human Rights Council, discrimination is conduct which violates any Virginia or Federal Statute or regulation governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age and disability.
In terms of employment, this means that unlawful discrimination occurs when an employee is not hired or promoted, makes a marital change in the terms and conditions of the employee’s employment, and the decision is based on a characteristic that is protected under the Virginia Human Rights Act. This would protect asking to take maternity leave. Some of these characteristics are clearly defined, while others are not. For example, age discrimination only applies when the person is over 40 years of age, whereas sex discrimination is a much broader category altogether. There are no such discrepancies when it comes to pregnancy, it is always protected under this act. The Virginia Human Rights Act protects people in employment, real estate transactions, and educational institutions.
Legal Terminations
There are cases where you can be fired while on maternity leave and it is legal. If you have been fired for something you would have been fired for had you not been on leave, then your termination is legal regardless of your maternity leave. This includes anything that is considered a fireable offense. This also includes mass layoffs and your department or job being eliminated. If you have just asked to take maternity leave and then discover that your entire department has been laid-off, your firing is legal because you would have been laid-off regardless of your pregnancy. In short, you can be fired while on leave as long as it is not for any reason pertaining to you taking leave.
What To Do if You Have Been Fired
If you believe your firing has violated either the FMLA Act the VHRA, reach out to a wrongful termination attorney right away for their insight into your case. You have a right to keep your job and being pregnant should never be the reason a job is taken away from you. If you are worried about being fired for asking for maternity leave, it is also a good idea to reach out to a wrongful termination attorney so that you can be proactive about the case. It’s important to know your rights regarding this situation, because having knowledge about employment law could prevent your termination altogether.
