Your Reinstatement Rights - How Do You Protect Your Job After Maternity Leave?

Updated: Jun 8, 2021

So you've dusted off the old briefcase and headed back to work like a champ. Ready or not, here I come! It's not easy to re-enter the workforce after baby. The work has piled up, coworkers are slightly irritated for having to pick up the slack, and your breasts are punishing you for leaving your baby by leaking through your fancy work clothes. They better welcome you back with a plate of pancakes and a team of assistants. But they won't. Instead, the best case scenario is that you'll simply pick up where you left off.

Reinstatement rights are the rights after you return from leave to your job.

Following a maternity leave, you're entitled to be immediately reinstated to the same or a comparable position.

A job is comparable if it's virtually identical in terms of pay, benefits and other terms and conditions of employment, including worksite, shift, effort, responsibilities, duties, etc.

There is an exception for key employees, which is pretty rare. These are the top 10% earners. If you are denied reinstatement because you are a key employee, you should consult with a lawyer.

You are only entitled to be reinstated if you are able to return to work upon the expiration of your leave. If you tell your employer that you're not ready to come back to work because you want more time with your baby, they can fire you.

However, if you or your baby has a continuing health condition after birth and you need more time to attend to this condition, you may be able to negotiate a reasonable accommodation, even if you are out of leave. Whether your employer will grant your request depends on the circumstances, including the industry and how burdensome it is on the company to grant your request. If you tell them, "I can't come back now and I don't know when I can come back," that would not be a reasonable request. You're not entitled to an open-ended leave of absence. If you tell them, "I can't come back right now, but I can come back in two weeks," they have to at least consider that request because that's a request with a specific end time. If you say, "I can only come back at 70% capacity," they would also need to investigate that. It would all depend on how hard that would be on the business. Reasonable accommodations after leave is a complex area of the law and you should consult with a lawyer if you were denied accommodations.

If you found this article helpful, please share it with your friends. It's important moms feel protected returning to their jobs. We all need to help each other.

DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to California employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Mamattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.