What happens if someone does not return to work after 18 weeks of maternity leave?

Our store manager has been out on maternity leave 18 weeks now since the baby was born. She has yet to contact anyone about coming back and avoids the issue. Should she still be allowed to come back to work? And if not is the company required to pay her unemployment? And is it OK that the assistant manager has been doing her job at assistantpay this whole time??

Asked on September 1, 2011 California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

1) Even FMLA leave only provides 12 weeks of leave; unless your comany specifically agreed to let her take this much leave and hold her job for  her (or unless she has and has used a truly staggering amount of vacation, sick, etc. days to cover her leave) she has exceeded the amount of leave she may take.

2) Because of the above, you do not need to let her return to work--you obviously can, if you want to, but you don't need to.

3) You may fire her for cause if you choose--excessive absenteeism without permission--so she would not be eligible for unemployment.

4) The employer determines how much different jobs pay and who does what duties--so long as you are not "underpaying" the manager due to race, religion, age over 40, disability, or sex, you should be ok.

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