Published on June 21st, 2016 by Alan L. Sklover
Question: My baby was born a month ago, and everything is going well. I am scheduled to return to work in 30 days.
In two weeks, there is an annual trade conference that I have attended in past years that I would like to attend again this year, both to represent my employer and to network for myself. It would be a two-day trip. My pediatrician thinks it would be good for the baby, because I will be going back to work, and this may be a good “trial run” for her. Am I permitted to do that?
Brewster, New York
Answer: Dear Carleen: First, congratulations on your new “little one.” Everyone who knows me knows that I believe kids are the best part of life . . . “usually.” Your question really made me think, and also required that I do some legal research. This is what I have concluded:
1. As a general rule of thumb, it’s the Mother’s Leave of Absence; she is free to do as she pleases while on it. In my 30+ years as an employment attorney, I have never heard of any law or company policy that stipulates what a new Mom can do, or cannot do, while on her Maternity Leave. It is her right, her leave, her time, her baby, and her business what she does on that leave of absence. Of course, the idea behind a Maternity Leave is to permit the mother and child to have special time together, to my knowledge, an employer cannot mandate that a mother on Maternity Leave has to remain with her new child at all times, or a certain percentage of that time.
2. Some employers do have policies against (a) asking, (b) requiring, or (c) even suggesting that mothers on maternity leave perform any work-related activities, but they are usually “cautionary,” not mandatory. The fear that underlies such employer policies is that the employer may some day be alleged to have interfered with the Mom’s peaceful enjoyment of her time with her new baby during her Maternity Leave by the Mother’s clients, colleagues, or managers contacting her, asking her to do work, or even urging her to come back early.
Where, though, it is the new Mom, herself, who is the one taking the initiative to engage in some work-related activity while on Maternity Leave, as you are, the employer is sort of “between a rock and a hard place,” that is, between, on the one hand, (a) the Mom’s right to do as she pleases during the Maternity Leave, and, on the other hand, (b) the Mom’s possibly later claiming she was “urged,” “compelled” or “cajoled” into engaging in the work activity while on leave.
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3. One legally prohibited activity while on Maternity Leave is that the new Mom cannot work for another employer while on leave. A leave of absence, whether paid or unpaid suggests a continuing employment relation from which an employee is “on hold” for some reason.
To engage in other income-producing efforts, such as alternative employment or beginning a new business – would constitute a violation of the understanding that the relation continues, and doubly so if the leave of absence was a paid leave of absence. Such “double dipping” might even be claimed to be fraudulent.
4. Another “limit,” so to speak, on the right to take Maternity Leave is the general limit imposed by sound judgment and common sense. As examples, if a new Mom on Maternity Leave was found to be traveling for weeks without her new child, to a casino, going skiing, or on a safari, would likely upset – or worse – her employer. Sure would upset me if I was her employer, and it might even be enough upset to result in a job termination.
I think even many Courts would uphold such a termination as for “cause,” or “misconduct.” As in so many things, there’s good judgment and there’s bad judgment, and sometimes there is even just plain old terrible judgment, if you know what I mean. Some activities while on Maternity Leave would seem to be quite defensible; others seemingly indefensible.
5. While there is no “bright line” that separates “defensible” from “indefensible” activities during a Maternity Leave, where the activity has (a) met with a pediatrician’s approval, (b) the activity is in the employer’s interests, (c) it is completely voluntary, and (d) the activity is brief, it should not pose a problem. The facts as you have laid them out supports good judgment, mature thinking, and in the best interests of all, including your new little one. Where those ingredients are present, it is exceedingly rare that we have a problem.
6. An appropriate memo to address your desire to attend the conference, that addresses these concerns and issues, is the best way to go. I would suggest you (a) give notice of your intent to attend the conference, (b) explain how it is good for all, including the baby, (c) remind your manager that it is your leave of absence, without restriction, and (d) spell out clearly that it is your idea and you are not being compelled.
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While it could be best to send this kind of memo before attending the conference, you might instead attend the conference and then, afterward, let your manager know you attended, and all of the good reasons for that attendance, as noted above. You could say to your Manager, “If I had told you beforehand, someone could have claimed your approval was really a compulsion. Likewise, if you refused, that, too, could be viewed as an illegal imposition upon me. It is for these reasons that I chose not to request permission before attending,” or words to that effect.
Carleen, thanks for writing in. As noted above, my congratulations to you on your little one. I hope this proves to be something of a helpful guide in going forward.
P.S.: If you would like to speak with me directly about this or other subjects, Mr. Sklover is available for 30-minute, 60-minute, or 120-minute telephone consultations, just [ click here. ] Evenings and weekends can be accommodated.
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