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Can a small company of less than 13 employees not hold a job for a pregnant women who has gone out to have her baby?

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Can a small company of less than 13 employees not hold a job for a pregnant women who has gone out to have her baby?

I know of a 23 year old pregnant woman whose employer told her that because they are a small company (10-12 employees) that he doesn’t have to hold her job for her when she goes out to have her baby. The girl is also very much alone with little to no family and poor. She does a good job at work and I know she is well liked there.

Asked on February 1, 2012 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes, the employer most likely does not have to hold her job for her. An employer only has to hold an employee's job is they go out for child birth (or to care for a newborn) if the employer agrees to do so, or if the employer and employee is covered by a law requiring this.

The main law providing childbirth-related leave is the Family and Medical Leave Act (FMLA). However, FMLA specifically does not cover any employer with less than 50 employees (the reason is, a smaller employer often can't afford to hold a job--keeping a job open could hurt a smaller employer, and therefore hurt its other employees). From what you write, this employer is to small to be covered by FMLA--and those states which have their own, leave-related laws (not all states do) generally follow the leave of FMLA in exempting smaller employers. So it appears that this woman cannot force the employer to hold her job, if it does not want to.


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