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Can You Get Fired On Maternity Leave?

By Michelle Ruiz

Yahoo CEO Marissa Mayer gave birth to twin daughters on Thursday, her second and third children. Her much-debated two-week maternity leave is now under way. Meanwhile, her job may be in peril.

A struggling Yahoo announced a plan last week to spin off its core Internet business — including search technology, email functions and Tumblr — into a new company, a move that would make it easier to sell.

A new owner may not want to keep Mayer, who has struggled to revive Yahoo. (Other murmurs suggest she could lose her job even before a sale.) If she is let go by a new owner, Mayer stands to earn at least $59.3 million in severance, the San Francisco Chronicle estimates, based on Yahoo’s latest stock prices. (Earlier reports of a $160 million severance package were based on higher stock numbers from 2014.)

"Good work if you can lose it," Fortune quipped. "Yahoo's Mayer Wins No Matter What," a USA Today headline trumpeted. Monetarily, that's tough to argue. But careerwise, it would hardly be a coup for Mayer to leave Yahoo without having executed her mission to turn the company around.

It shines a spotlight on the "glass cliff" that many female CEOs dangle from: As Bryce Covert wrote at Think Progress, female CEOs are more likely to be put in charge of a struggling company, and more likely to be pushed out.

While it does not appear Mayer will lose her job in the next two weeks (The New York Times estimates Mayer "has a year to fulfill Yahoo's potential"), her situation raises a question for working women at large: Can you get fired while on maternity (or paternity) leave?

"An employee cannot be terminated because they are on maternity leave,” explains Donna Rutter, a principal at Rutter Law Group in San Francisco. That could qualify as unlawful pregnancy discrimination.

But, Rutter adds, if the employer makes a "legitimate business decision," like an economic-based layoff, and an employee happens to be on maternity leave, the employer can fire him or her.

Even for employees who qualify for job and benefit protection under the federal Family and Medical Leave Act (FMLA), which requires that employers return their employees to the same position and pay rate after taking maternity or family leave, "an employee is not totally exempt from termination or layoff," notes Laura J. Maechtlen, a partner at Seyfarth Shaw LLP. In short, FMLA guarantees your job will be waiting for you after maternity leave, but if your job, or your company, no longer exists, it's an empty promise.

Several employment attorneys contacted by confirmed that it is possible to get laid off while on maternity leave, but the issue is nuanced, as there are many factors that could affect the decision, including the state in which the employee works (each state has different protections for pregnancy disability) and how long they’ve been with the company (length of employment and number of hours worked afford employees various protections under state and federal laws).

"How a company goes about dealing with a termination while someone is on any type of medical leave speaks volumes about the company's culture, how they value employees, reflects on employee satisfaction surveys, and exhibits their sophistication about risk assessment and risk management," says Krista Mitzel, managing partner at the boutique law firm The Mitzel Group, LLP, where she specializes in management-side employment law. "What may be legal may not be a smart PR or morale decision."

Watch the video above to hear Mayer talk about how she balances her home life with her busy career. Check out her exclusive full MAKERS profile here.

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Photo Credit: Getty Images