HR Management & Compliance

Executives on Maternity Leave: Return Not Guaranteed by FMLA

Source: @marissamayer on Twitter

Newly appointed Yahoo CEO Marissa Mayer — who some pundits have called “the most powerful pregnant woman in America” — is an exceptional employee in more ways than one. Even if she had worked the prerequisite 12 months (or 1,250-plus hours) at Yahoo to qualify for FMLA leave, Mayer would not be guaranteed a return to her C-suite, corner office job after maternity leave because she does not have the same rights to job restoration as other eligible workers. Her circumstances provide an ideal opportunity to revisit the way employers treat employees who are pregnant, and what the law says.

Highly compensated employees like Mayer (or “key employees,” as defined by FMLA) are among a company’s highest-paid 10 percent of all workers within 75 miles of the facility where they are employed. With her reported earnings expected to top $71 million over the next five years, Mayer, it is safe to say, falls under the “Exception to General Rules” category. (See ¶232 of Thompson’s Family and Medical Leave Handbook.) At age 37, she is the youngest of 20 women chief executives in the Fortune 500 public companies.

Mayer told Fortune that she plans to take just a few weeks of maternity leave and to work while she is out. Members of Yahoo’s board of directors “showed their evolved thinking” by hiring her in the final months of her pregnancy, she said in the Fortune interview.

Because of the potential hardship on companies whose top-level executives are absent for several weeks, Congress adopted a “key employee” exception to FMLA that permits an employer to deny top dogs their old jobs back if restoration would cause “substantial and grievous economic injury” to the company. The average employee, on the other hand (that is, the eligible employee), is entitled to 12 weeks of job-protected, unpaid leave for the birth of a child.

For additional information about maternity leave, see Thompson’s employment law library, including the Family and Medical Leave Handbook.