Do I have to keep open a job for my pre-school teacher after her maternity leave?

I am the director in my church daycare. We have 25 employees and one of my teacher asked to take 4 months off for pregnancy. Our handbook does state an employee can take off for 4 months and that a position is not guaranteed. Do I have to provide a full time position for her when she returns? I have to have another teacher in her position while she is out and can’t see firing someone so she can return. She is not that desirable an employee

Asked on April 25, 2017 under Employment Labor Law, Indiana


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Under the FMLA, employees must have worked a minimum of 1,250 hours for the employer and must work for at least 1 year at a site where at least 50 employees of the same employer are working within 75 miles. Accordingly, unless this worker somehow had 4 months of PTO to cover their absence, you can terminate their employment without legal consequences.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, you do not have to hold her job for her: with 25 employees, you are not subject to the Family and Medical Leave Act (and 4 months would be longer than she would be allowed under the FMLA, anyway), and you policy handbook does not obligate you to hold her job, either. You can replace her, based on what you write.

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