Yes, firing someone on maternity leave is illegal in most circumstances under federal and state law. Two major federal statutes, the Family and Medical Leave Act and the Pregnancy Discrimination Act, protect employees from termination tied to pregnancy and childbirth leave.
That said, the full picture is more specific than a simple yes. Whether you are protected depends on your employer’s size, how long you have worked there, and which state you live in. Federal protection has gaps that state laws sometimes fill.
Most people do not realize that employees at companies with fewer than 50 workers may not have FMLA protection at all. That gap leaves millions of workers without federal job-protected leave, though state laws often step in.
This guide covers every layer of the law: federal statutes, state protections, what employers can and cannot legally do, what employees can recover, and how to take action in 2026.
Is It Illegal to Fire Someone on Maternity Leave?
Yes, firing someone on maternity leave is illegal when it violates the Family and Medical Leave Act, the Pregnancy Discrimination Act, or applicable state law. Terminating an employee because she took or requested maternity leave constitutes unlawful retaliation and discrimination under federal law.
The legal prohibition is not limited to the act of firing alone. An employer who terminates an employee during maternity leave, upon return from leave, or shortly after announcing a pregnancy faces a strong legal presumption that the termination was retaliatory. Courts and the EEOC treat timing as significant evidence of discriminatory intent.
Both the FMLA and the PDA can apply simultaneously. A single termination can violate both statutes, creating parallel legal claims with separate remedies.
Quick Facts:
- FMLA protects employees at companies with 50 or more employees
- The Pregnancy Discrimination Act applies to employers with 15 or more employees
- Firing an employee because of maternity leave is considered retaliation under FMLA
- Firing because of pregnancy or childbirth violates the PDA
- State laws often provide broader protection than federal minimums
- The EEOC enforces the PDA; the Department of Labor enforces FMLA
Can You Be Fired While on Maternity Leave?
An employee can be fired during maternity leave, but only for a legitimate, non-discriminatory reason that is entirely unrelated to the leave itself. The bar for proving that reason is independent of the leave is extremely high.
Legitimate reasons that could justify termination during leave include documented performance issues that existed before the leave began, a genuine company-wide layoff that would have affected the employee regardless of her leave status, or serious misconduct discovered during the leave period. The key word in every case is “would have.”
The legal standard in FMLA cases requires the employer to show the employee would have been terminated even if she had never taken leave. That is called the “key employee” exception in some FMLA contexts, and the general causation defense in termination cases. Employers who cannot document a pre-existing legitimate reason face significant legal exposure.
Situations where termination during leave may be legally defensible:
| Situation | Potentially Legal? | Employer Must Show |
|---|---|---|
| Company-wide layoff affecting all similar roles | Possibly | Termination would have occurred regardless of leave |
| Pre-documented performance issues before leave | Possibly | Documentation predates leave announcement |
| Position eliminated, no equivalent role exists | Possibly | Elimination is legitimate, not pretextual |
| Termination tied to start or announcement of leave | No | Timing creates strong presumption of retaliation |
| Fired specifically because of leave or pregnancy | No | This is the violation itself |
| Replaced by permanent hire during leave | No | FMLA requires reinstatement to equivalent position |
Firing an Employee on Maternity Leave Law
The law governing termination of employees on maternity leave comes from multiple overlapping federal statutes and state codes. No single law covers every situation, which is why understanding the full framework matters.
The primary federal statutes are:
- FMLA (29 U.S.C. Section 2601 et seq.): Provides up to 12 weeks of job-protected, unpaid leave for eligible employees at covered employers. Prohibits interference with leave rights and retaliation for taking leave.
- Pregnancy Discrimination Act (42 U.S.C. Section 2000e(k)): Amends Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. Makes firing because of pregnancy or leave illegal sex discrimination.
- Pregnant Workers Fairness Act (PWFA, effective June 27, 2023): Requires covered employers to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related conditions. Does not create a leave entitlement but strengthens anti-discrimination protections.
- Americans with Disabilities Act (ADA): May apply when pregnancy-related conditions qualify as a disability, requiring reasonable accommodation.
Each statute has different employer size thresholds, different remedies, and different enforcement agencies. A termination can trigger claims under multiple statutes simultaneously.
Key Takeaway: No single federal law covers every employee on maternity leave. The combination of FMLA, the PDA, the PWFA, and state law creates layered protection, but gaps exist for employees at small employers.
FMLA Firing During Leave: Is It Illegal?
Yes, firing an employee for taking or requesting FMLA leave is explicitly illegal under 29 U.S.C. Section 2615(a). FMLA Section 105 prohibits any employer from interfering with, restraining, or denying the exercise of any right provided under FMLA, and from discriminating or retaliating against any employee for exercising those rights.
FMLA leave for the birth or adoption of a child is one of the statute’s enumerated qualifying reasons. An employee who takes FMLA leave for maternity purposes and is terminated because of that leave has a direct FMLA retaliation claim.
FMLA also requires reinstatement. An eligible employee returning from FMLA leave must be restored to the same position or an equivalent position with equivalent pay, benefits, and working conditions. Firing the employee instead of reinstating her violates this restoration right separately from the retaliation prohibition.
Bold callout: Under 29 U.S.C. Section 2617, FMLA violations entitle the employee to recover wages lost, salary lost, employment benefits lost, and other compensation lost due to the violation, plus an equal amount in liquidated damages, plus attorney fees and costs. That liquidated damages provision effectively doubles the back pay award.
Can an Employer Fire You While on FMLA Leave?
An employer can fire you while you are on FMLA leave only if the termination is based on a legitimate reason that would have applied regardless of your leave. That is the legal standard. It sounds simple. In practice, proving it is genuinely independent of the leave is difficult for employers.
FMLA does not give employees absolute immunity from termination. A genuine, documentable layoff that eliminates your position along with others is not automatically converted into an illegal termination simply because it happens to occur during your leave period.
What FMLA does is create a strong legal presumption against the employer when timing aligns with the leave. If your termination letter arrives the day after you request FMLA leave, or the week before you are scheduled to return, courts and the EEOC take that timing very seriously as circumstantial evidence of retaliation.
Employer obligations during FMLA leave:
- Cannot replace you with a permanent hire who takes over your position
- Must hold an equivalent position available for your return
- Cannot reduce your benefits or seniority because you took leave
- Cannot count FMLA leave as an absence under attendance policies
- Cannot use leave as a negative factor in performance reviews
Pregnancy Discrimination Act Firing
The Pregnancy Discrimination Act makes it illegal for any covered employer to fire, refuse to hire, demote, or otherwise discriminate against an employee because of pregnancy, childbirth, or any related medical condition. This includes maternity leave taken because of those conditions.
The PDA applies to employers with 15 or more employees, a lower threshold than FMLA’s 50-employee requirement. This means employees at companies too small for FMLA coverage may still have PDA protection if the employer has at least 15 employees.
Under the PDA, an employer must treat pregnancy-related conditions the same as any other temporary disability or medical condition. If the employer provides paid leave or job protection for employees recovering from surgery or illness, it must provide the same treatment for pregnancy and childbirth. Treating maternity differently from other medical leave is itself a form of PDA violation.
| Protected Category | Covered By | Employer Size Minimum |
|---|---|---|
| Taking maternity leave | FMLA | 50 employees |
| Fired because of pregnancy | Pregnancy Discrimination Act | 15 employees |
| Pregnancy accommodation refusal | Pregnant Workers Fairness Act | 15 employees |
| Pregnancy as qualifying disability | ADA | 15 employees |
| Retaliation for asserting PDA rights | Title VII | 15 employees |
Can a Small Employer Fire Someone on Maternity Leave?
Small employers with fewer than 50 employees are not covered by FMLA, which means they have no obligation under that statute to provide 12 weeks of job-protected leave. But that does not mean small employers can fire pregnant employees freely.
The Pregnancy Discrimination Act still applies to employers with 15 or more employees. Firing someone because she is pregnant, because she took time off for childbirth, or because she requested leave for a pregnancy-related condition violates the PDA regardless of whether the employer has 50 employees or 20.
For truly small employers with fewer than 15 employees, federal anti-discrimination law largely does not apply. However, many states have enacted laws that cover smaller employers. California’s FEHA (Fair Employment and Housing Act) covers employers with five or more employees. New York’s Human Rights Law covers employers with four or more employees. New Jersey’s Law Against Discrimination covers all employers regardless of size.
Small employer coverage by law:
| Law | Minimum Employees | Applies to Maternity? |
|---|---|---|
| FMLA | 50 | Yes, job-protected leave |
| Pregnancy Discrimination Act | 15 | Yes, anti-discrimination |
| Pregnant Workers Fairness Act | 15 | Yes, accommodation |
| California FEHA | 5 | Yes, broader protection |
| New York Human Rights Law | 4 | Yes, full protection |
| New Jersey LAD | All sizes | Yes, all employers |
Maternity Leave Firing Exceptions Legal
The legal exceptions that allow firing during maternity leave are narrow and require genuine, documented justification. Employers who invoke these exceptions and cannot back them up with pre-existing documentation face serious legal risk.
The most recognized exceptions are:
1. Genuine workforce reduction: A layoff that eliminates the employee’s position along with others in a legitimate business restructuring. The employer must show the reduction was real, affected similarly situated employees, and the selection criteria did not target the employee because of her leave.
2. Pre-existing performance issues: Termination based on documented performance problems that preceded the leave and were already progressing toward termination before the leave began. Employers who create performance documentation after a maternity leave announcement lose this defense.
3. Serious misconduct: Discovery of fraud, theft, harassment, or other serious misconduct during the leave period that would warrant termination regardless of timing.
4. Position elimination with no equivalent role: Under FMLA, the employer’s obligation to reinstate disappears only if the position was genuinely eliminated and no equivalent position exists. This exception is narrow and requires proof of genuine elimination.
What does not qualify as an exception: replacing the employee “temporarily” with someone who becomes permanent, deciding the employee is “no longer needed” without prior documentation, or any reason whose timing correlates with the leave or pregnancy.
Key Takeaway: Exceptions that permit firing during maternity leave are real but narrow. Every exception requires pre-existing documentation and a clear showing that timing was coincidental, not causal.
State Laws on Firing During Maternity Leave
State laws on maternity leave termination vary significantly and frequently provide stronger protections than federal law. Employees in states with robust family leave laws have rights that go well beyond FMLA and the PDA.
Every state has some form of anti-discrimination law that prohibits pregnancy discrimination. Many states have enacted their own family leave statutes with broader coverage, longer leave periods, or lower employer size thresholds than federal law.
States with paid family leave programs, including California, New York, New Jersey, Washington, Massachusetts, Connecticut, Oregon, Colorado, and others, provide additional job protection during leave that strengthens the employee’s position against termination.
| State | Key Law | Employer Size | Leave Duration |
|---|---|---|---|
| California | CFRA + PDL + CPFL | 5 employees (CFRA) | Up to 12 weeks CFRA plus 4 weeks PDL |
| New York | NY PFL + Human Rights Law | 4 employees (NYHRL) | Up to 12 weeks paid leave |
| New Jersey | NJ FLA + NJ LAD | All employers (LAD) | Up to 12 weeks |
| Washington | WA PFML | All employers | Up to 12 weeks plus additional |
| Massachusetts | MA PFML | All employers | Up to 12 weeks |
| Texas | Federal law only | 50 (FMLA) | 12 weeks unpaid |
California Maternity Leave Firing Law
California has the strongest maternity leave termination protections in the United States. Multiple overlapping state statutes protect California employees far beyond what federal law requires.
California’s primary protections include:
California Family Rights Act (CFRA): Covers employers with five or more employees. Provides up to 12 weeks of job-protected leave for baby bonding. The employer must reinstate the employee to the same or comparable position upon return.
Pregnancy Disability Leave (PDL): Covers employers with five or more employees. Provides up to four months of job-protected leave specifically for pregnancy-related disability, separate from and in addition to CFRA leave.
California Paid Family Leave (PFL): Provides up to eight weeks of partial wage replacement during baby bonding leave. While PFL itself is not job-protected at the state level, CFRA provides the job protection that runs alongside PFL.
California Fair Employment and Housing Act (FEHA): Prohibits pregnancy discrimination for employers with five or more employees. Provides broader remedies than federal law, including emotional distress damages and punitive damages in appropriate cases.
Bold callout: A California employee on maternity leave could be entitled to up to 16 weeks of job-protected leave total by combining PDL and CFRA leave. Firing that employee during any part of that combined leave period triggers liability under FEHA, CFRA, and potentially federal law simultaneously.
Maternity Leave Termination Rights
Employees terminated during maternity leave have specific legal rights that arise immediately upon termination. Knowing those rights determines what options are available and what deadlines apply.
The core rights of a terminated employee during maternity leave include:
- Right to challenge the termination: File an EEOC charge for PDA or PWFA violations, or a Department of Labor complaint for FMLA violations
- Right to reinstatement: Under FMLA, the remedy for unlawful interference can include reinstatement to the same or equivalent position
- Right to back pay: Wages and benefits lost from the date of termination through the date of judgment or settlement
- Right to front pay: Future wages when reinstatement is not practical or the employer refuses to reinstate
- Right to liquidated damages: Under FMLA, an amount equal to back pay as additional damages unless the employer shows good faith
- Right to attorney fees: Both FMLA and Title VII allow prevailing employees to recover attorney fees and litigation costs
The deadlines for asserting these rights are strict. EEOC charges for PDA or PWFA violations must be filed within 180 days of the discriminatory act, or within 300 days in states with their own anti-discrimination agencies. FMLA claims must generally be filed within two years, or three years for willful violations.
What Happens If You Get Fired on Maternity Leave?
Getting fired on maternity leave triggers a specific sequence of events and decisions that determine whether the employee can recover legally and financially.
The first decision is whether to file with the EEOC, the Department of Labor, or directly in federal or state court. For PDA and PWFA claims, filing an EEOC charge is required before suing in federal court. For FMLA claims, an employee can file directly in court without going through the EEOC first, though consulting the DOL’s Wage and Hour Division is also an option.
The second decision is whether to accept any severance the employer offers. Severance agreements almost always include a release of legal claims. Signing a severance agreement without understanding what claims it releases can permanently waive the right to sue for wrongful termination. Reviewing the agreement before signing is not just recommended; it is the difference between preserving and surrendering legal rights.
Immediate steps after a maternity leave termination:
- Document everything: save all communications, termination letters, performance reviews
- Note the exact date of termination and the stated reason
- Gather evidence of the leave request and its approval or acknowledgment
- Apply for unemployment benefits, which are typically available after wrongful termination
- File an EEOC charge if the termination involved 15-plus employee employer and pregnancy discrimination
- File a DOL Wage and Hour complaint if FMLA applies
Maternity Leave Termination Pay
Employees fired during maternity leave are entitled to specific categories of pay and compensation depending on the claims they have and the laws that apply to their situation.
Under FMLA, the statute does not guarantee paid leave. What it guarantees is the right to return to work. When that right is violated through termination, the employee becomes entitled to the wages and benefits they would have earned had they returned, calculated from the point the termination occurred.
Under the PDA and Title VII, back pay is a standard remedy for discriminatory termination. Back pay covers the period from the termination date to the date of judgment or earlier reinstatement. It includes base wages, lost bonuses, lost raises, and the value of lost benefits like health insurance.
Some employees are also entitled to front pay when reinstatement is not ordered. Front pay covers future earnings the employee would have received had she remained employed.
Termination pay categories:
| Pay Type | What It Covers | Legal Basis |
|---|---|---|
| Back pay | Lost wages from termination to judgment | FMLA, Title VII, PDA |
| Front pay | Future lost wages when reinstatement not ordered | Title VII, FMLA |
| Liquidated damages | Equal to back pay amount | FMLA (unless employer shows good faith) |
| Lost benefits | Health insurance, pension, 401k contributions | FMLA, Title VII |
| Emotional distress | Pain, suffering, humiliation | Title VII, state law (California FEHA) |
| Punitive damages | Punishment for malicious conduct | Title VII cap applies; California FEHA |
| Attorney fees | Legal costs of pursuing the claim | FMLA, Title VII |
Maternity Leave Wrongful Termination
Maternity leave wrongful termination refers to the termination of an employee that violates a specific legal right related to her maternity leave or pregnancy status. It is not a standalone legal cause of action but rather a description of a termination that violates one or more specific statutes.
The term “wrongful termination” can cover FMLA interference or retaliation, PDA discrimination, PWFA violation, state family leave law violation, and in some states, a tort claim for wrongful discharge in violation of public policy.
The public policy exception to at-will employment is significant in this context. Most US states recognize that even in at-will employment states, an employer cannot fire someone for a reason that violates a clear public policy. Firing an employee for exercising her right to maternity leave violates the public policy embedded in FMLA and the PDA. In many states, this creates a separate tort claim independent of the federal statutes.
California, for example, recognizes a Tameny claim, named after the California Supreme Court case Tameny v. Atlantic Richfield Co., which allows an employee to sue for wrongful termination in violation of public policy when the termination violates a fundamental public policy of the state.
Key Takeaway: Wrongful termination during maternity leave is not a single legal claim but a situation that can give rise to multiple simultaneous federal and state law violations, each with its own remedies and deadlines.
Damages for Wrongful Termination Maternity Leave
Damages available for wrongful termination during maternity leave can be substantial and include both compensatory and punitive components depending on which laws were violated and the severity of the employer’s conduct.
Under FMLA, the liquidated damages provision is particularly powerful. When an employer violates FMLA, the employee is entitled to back pay plus an equal amount in liquidated damages unless the employer can demonstrate it acted in good faith and had reasonable grounds to believe the termination was lawful. In practice, employers rarely meet that good faith standard when the timing of termination correlates with protected leave.
Under Title VII and the PDA, compensatory and punitive damages are available in addition to back pay. However, Title VII caps apply based on employer size:
| Employer Size | Title VII Damages Cap |
|---|---|
| 15 to 100 employees | $50,000 |
| 101 to 200 employees | $100,000 |
| 201 to 500 employees | $200,000 |
| More than 500 employees | $300,000 |
State law claims often do not have the same caps. California’s FEHA does not cap compensatory or punitive damages, which is one reason California wrongful termination cases can result in significantly larger awards than purely federal cases.
Bold callout: In a 2022 EEOC-reported case, a national retailer paid $1.6 million to settle a class of pregnancy discrimination claims including terminations during maternity leave. Individual settlements in maternity leave termination cases commonly range from tens of thousands to hundreds of thousands of dollars depending on salary, tenure, and employer size.
EEOC Complaint Fired Maternity Leave
Filing an EEOC complaint is the required first step for employees who want to sue under the Pregnancy Discrimination Act, Title VII, the PWFA, or the ADA for a maternity leave-related termination. Without an EEOC charge, the federal court door for those claims is closed.
The EEOC process begins with filing a charge of discrimination. This is a formal written statement identifying the employer, the discriminatory act, and the legal basis for the complaint. The EEOC assigns the charge a number and notifies the employer within 10 days.
After the charge is filed, the EEOC may attempt mediation or conciliation between the parties. If that fails, the EEOC investigates the charge. Investigation timelines vary widely, from a few months to several years in complex cases. If the EEOC finds reasonable cause, it may issue a right to sue letter and attempt to resolve the case on the employee’s behalf. If no resolution occurs, the employee receives a right to sue letter and can proceed to federal court.
EEOC filing deadlines for maternity termination claims:
- 180 days from the discriminatory act in states without a state anti-discrimination agency
- 300 days from the discriminatory act in states with their own fair employment agency (most states)
- Missing the deadline permanently bars the federal court claim
Quick Facts:
- EEOC charges for PDA and PWFA are filed online, by mail, or in person at an EEOC office
- Filing is free
- The EEOC received 3,780 pregnancy discrimination charges in fiscal year 2023
- Approximately 15 to 20 percent of EEOC charges result in merit findings or settlements
Suing Employer for Firing During Maternity Leave
Suing an employer for firing during maternity leave can proceed through federal court under FMLA, Title VII, and the PWFA, or through state court under applicable state employment laws. The pathway chosen affects the remedies available and the procedural requirements.
For FMLA claims, an employee can file suit in federal district court without first going through the EEOC. The statute of limitations is two years for most violations and three years for willful violations. Filing within the statute of limitations is essential; missing it bars the claim entirely.
For PDA, Title VII, and PWFA claims, the EEOC charge must be filed first, and the employee must receive a right to sue letter before proceeding to federal court. Once the letter is received, the employee has 90 days to file the federal lawsuit.
State court claims under state law can often proceed simultaneously with federal claims. In some cases, state law provides broader remedies and higher damages, making state court the preferred venue for certain claims.
Lawsuit pathway comparison:
| Claim Type | Pre-suit Requirement | Filing Deadline | Court |
|---|---|---|---|
| FMLA retaliation | None (DOL optional) | 2 to 3 years | Federal district court |
| PDA/Title VII | EEOC charge required | 300 days for EEOC charge | Federal court after right to sue |
| PWFA violation | EEOC charge required | 300 days for EEOC charge | Federal court after right to sue |
| California CFRA | DFEH/CRD charge | 3 years | State or federal court |
| State wrongful termination tort | None in most states | Varies by state | State court |
Frequently Asked Questions
Can an employer fire you for taking maternity leave?
No, an employer cannot legally fire you for taking maternity leave that is protected under FMLA, the Pregnancy Discrimination Act, or applicable state law.
Firing an employee because she took or requested maternity leave is retaliation under FMLA and discrimination under the PDA.
The legal prohibition applies whether the firing happens during the leave, immediately upon return, or shortly after pregnancy is announced.
Employers who do this face back pay, liquidated damages, attorney fees, and potential punitive damages under state law.
What is the statute of limitations for a maternity leave wrongful termination claim?
The statute of limitations depends on which law forms the basis of the claim.
FMLA claims must be filed within two years of the violation, or three years if the violation was willful.
PDA and Title VII claims require an EEOC charge within 300 days in most states, followed by a lawsuit within 90 days of receiving the right to sue letter.
State law claims have their own timelines, with California allowing up to three years for CFRA claims and New York allowing three years for Human Rights Law claims.
Does FMLA protect employees at companies with fewer than 50 workers?
No, FMLA only applies to employers with 50 or more employees within a 75-mile radius.
Employees at smaller companies do not have FMLA rights, but they may still be protected by the Pregnancy Discrimination Act if the employer has 15 or more employees.
State laws often fill this gap, with California covering employers with five employees and New Jersey covering all employers regardless of size.
Employees at very small employers should check their state’s specific family leave and anti-discrimination laws.
Can you collect unemployment if fired while on maternity leave?
Yes, employees fired during maternity leave can typically collect unemployment benefits in most states.
Being fired for exercising your legal right to maternity leave is generally treated as a termination without good cause by the employer, which qualifies the employee for benefits.
The employer may contest the unemployment claim, but retaliation-based terminations are difficult to defend in unemployment proceedings.
State unemployment rules vary, so checking your state’s specific eligibility criteria after termination is important.
What is the Pregnant Workers Fairness Act and how does it help?
The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, and requires covered employers with 15 or more employees to provide reasonable accommodations for pregnancy, childbirth, and related conditions.
The PWFA fills a gap left by the PDA by requiring proactive accommodation rather than just prohibiting discrimination.
An employer who fires an employee rather than providing a reasonable pregnancy-related accommodation violates the PWFA.
The EEOC enforces the PWFA, and employees file the same way as a PDA claim, through an EEOC charge before pursuing federal court action.
Closing
Firing someone on maternity leave is one of the most legally exposed decisions an employer can make, and one of the most important legal situations an employee can face. The protections are real, the remedies are significant, and the deadlines are strict.
Bookmark this page and share it with any employee or HR professional who needs a clear breakdown of the full legal framework. Understanding your rights, or your obligations, before a termination decision is made is always the right move.
