Can my boss fire me after using only 10 weeks of leave?

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Can my boss fire me after using only 10 weeks of leave?

I had taken 2 weeks off before giving birth. My boss says that FMLA covers from last day worked not from childbirth. He wants to terminate me.

Asked on April 9, 2012 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You may have taken illegal leave by leaving 2 weeks before giving birth--unless your employer voluntarily let you have that time. FMLA allows you to take up to 12 weeks (unpaid) for birth or for serious  medical conditions; however, if  you did not have some medical condition requiring you to leave work early, FMLA would not entitle you to take 2 weeks off pre-birth. So in that case, unless your employer chose to let  you have those two weeks off, you had no legal entitlement to them, and the employer may be able  to terminate you.

If you did have some good medical cause to take leave starting 2 weeks early, that  does  not extend your leave time--that is, you only get 12 weeks total under FMLA, so if you left two weeks prior to birth, you would only get 10 weeks after birth.  You cannot get 14 weeks total (2 weeks prior, 12 weeks after)--again, unless the employer voluntarily chose to give you the extra  two weeks. In this case, if you do not come back to work 10 weeks after giving birth, your employer could terminate you.

From what  your write, therefore, you may have taken unauthorized leave, except to the extent your employer let  you have extra time--either you started your leave too early, or if you were entitled  to take FMLA starting 2 weeks before birth, you'd only get another 10 weeks after birth. In no event does FMLA give you more than 12 weeks leave.


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