Can I be fired for having to go out on sick leave due to a high risk pregnancy?

I was recently terminated from my job while the doctors have me out of work on bed rest due to a high risk pregnancy. This is the first time I have been out of work for the length of time that I have been. I did receive short term disability payments for 6 weeks as recommended by the human resources department/payroll. I was allowed to go back to work after about an 8 week period but one the last day of my second week back I had gone into hypertension and was in the hospital from after following up with a new obstetrician was not allowed to return to work pending an ultrasound that was done (results were to put back on bed rest). After learning that Iwould be out of work again, I inquired with human resources /payroll about short term disability again. I had turned in the forms to my obstetrician and was awaiting on the completion of the forms. I then received a telephone call that I was being terminated. How can I go about fighting for an issue that I feel is horribly illegal and just violates my rights as a woman choosing to have children. Should I have to choose a job over my unborn child?

Asked on November 8, 2011 under Employment Labor Law, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

While you raise a very good ethical point--should a woman have to choose between her job or having a child?--it is important to recognize that the issue is not entirely one-sided: should an employer have to hold a job open for months for someone, potentially impairing its business or putting additional burdens on other employees to cover for her?

An employer is not allowed to discriminate against a pregnant woman in hiring or  employment--but that mostly means that it cannot fire (or demote, or take other negative employment action) on the basis of pregnancy. However, the employer's obligation to hold a job for someone who does not come into work is much more limited. If your company is large enough to be covered by the Family and Medical Leave Act, or FMLA (at least 50 employees within a 75-mile radius), and you have worked there enough to qualify, too (basically, full time work for a year or more), you have an absolute right to take at least 12 weeks of health or maternity related leave (unpaid, though you may be able to get disability) per year.

But if you or your company are not covered by FMLA--or if you are, and have used  up all your FMLA leave--then it is not clear that if you leave work voluntarily--including for medical reasons--that the company would have to hold your job for you and could not terminate you for non-appearance.

Because of how important the answer to this question is to you, and the fact that the termination *could* reflect discrimination against you on the basis of your pregnancy, you should definitely consult in person with an employment law attorney, who can evaluate the situation and your rights in detail. You have to be prepared, however, that the law may give you less protection than you feel just.


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