Can Your Maternity Leave Temp Replace You Permanently?

Learn your rights as a new parent both while on maternity leave and upon returning to work when it comes to being permanently replaced by a temporary employee.

Returning to work after maternity leave comes with all kind of emotions. Leaving your baby in the care of someone else might leave you feeling anxious after spending weeks at home with your little one. But at the same time, getting back in your groove as an actual human and not just an exhausted feeding, changing, burping machine can also feel incredibly freeing. Regardless of where you land, surviving the transition into becoming an official working mom is a triumph.

But what happens when your triumphant return to work doesn't feel so... triumphant?

It's not uncommon for parents returning to work to feel like they've been left behind while they were on leave. Maybe the office culture has changed, or worse, their temporary replacement is looking less temporary than expected.

One mom took to Reddit to explain her fraught return to work. "Before I left, I had been in my position for a year," explains Redditor SEA612. "It was a new position created for our department & my manager was still trying to figure out exactly how this new position would evolve." She describes how her manager didn't allow her much autonomy in determining how to work within her new position. "My manager didn’t seem to have too much confidence in letting me take initiative or allow me to turn this position into my own. I felt for every move I made, I had to ask my manager how to proceed and she would limit me to info I felt I needed to be privy to in order to take the lead in my new role."

Upon returning to work after maternity leave, she found that her temporary replacement had, well, kind of replaced her. "My manager had given my backfill way more responsibilities and allowed the backfill to be more involved in the process of our day to day team responsibilities and has even allowed the backfill to manage several projects on their own." She felt like she was the new employee and was being taught her own position by the person who filled in for her while she was on leave. What's more, the company had plans to hire the temp on permanently at the end of their contract.

This new mom was, in a word, shook.

Returning to work can be stressful enough, but to return to an environment where you feel you're being pushed out of your own job can be downright devastating. So what rights do new parents have both while on leave and upon returning to work?

Businesswoman looking at laptop while sitting in office
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According to the Family Medical Leave Act, employees are guaranteed 12 weeks of unpaid time to care for themselves, sick family members, or new babies, with the understanding that they can not be fired or have their position changed dramatically while on leave or following their return to work. "When an employee is on leave, an employer has the discretion of determining how that employee’s role and responsibilities will be covered, and that can include bringing on a temp and there really are no laws that address that," explains Ivelices Linares Thomas, Founder & Chief Executive Officer of HR & Beyond. "What the law does provide however is that upon returning your employer must return you to the same job that you left, or one that is nearly identical."

If you aren't returned to the exact same position, your new position must have similar duties and responsibilities, require the same level of skill and responsibility, offer identical pay including applicable overtime and bonuses, and offer identical benefits, the same work schedule, and be the same distance from home.

Pregnancy Discrimination

The Pregnancy Discrimination Act, passed in 1978, is an amendment to the Civil Rights Act of 1964 that provides legal protections for pregnant people in the workplace. It states that discrimination surrounding pregnancy, birth, or pregnancy and birth-related conditions is unlawful and that pregnant people must be treated the same as other employees in their "ability or inability to do work."

For parents returning to work after leave who feel that their jobs are in jeopardy or that they're being forced out, this law is important. "Employers should be mindful of not taking actions that could be seen as pushing the employee returning from leave out such that the employee feels discriminated against," explains Thomas. "Even negative employment actions that occur in close proximity to an employee’s leave can be seen as pregnancy discrimination."

Unfortunately, there's no hard and fast rule on when a person stops being protected by the PDA. "What the courts look at is how close in proximity in time was the negative action to the pregnancy or leave," explains Thomas. "The more time that has passed between the pregnancy and the negative action the less likely it will appear that the pregnancy had anything to do with it unless there are other factors that can tie the pregnancy to the negative action." So that means if your temporary replacement is performing better in your position than you were, after some amount of time, they could replace you in that position.

"The employee should not feel forced out," says Angelique Hamilton, Founder of HR Chique Consultancy Group. "An employee may have an interactive dialogue with the current manager to ask about and clarify any specific changes to the role and job duties. If the employee receives treatment that they feel is discriminatory or that constitutes harassment, it should be immediately reported to the company's Human Resources Department."

What Can Parents Do To Protect Their Jobs While On Leave

Upon returning to work, employees should set aside time to have an open dialogue with management about any changes that took place during their leave and discuss strategies to help the parent successfully integrate back into their position and the culture of the workplace as a whole.

But don't wait until your leave is over to get started. Taking a few proactive steps before your leave begins can make a huge difference in how things proceed while you're out as well as upon your return. Hamilton suggests having a conversation with management as soon as you know you will be requesting leave. A few questions to consider are:

  • What is my available benefit for Maternity Leave including time off? What documentation is needed?
  • What are my responsibilities prior to taking and returning from Maternity Leave?
  • Can I take additional time if needed upon return from Maternity Leave?
  • Will I receive updates or communication about any changes in the department or company that may affect me?
  • Is there an option for me to work a flexible schedule or telecommute after my Leave?
  • Who will assume my duties while I'm on leave?
  • How can I help with a transition plan?
  • How can I successfully transition back into my role after Maternity Leave?

By involving yourself in the transition, you let management know you have a vested interest in maintaining open lines of communication prior to and during your leave and that your goal is to reintegrate into your role as seamlessly as possible upon your return to work.

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