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Maternity Leave: What You Need to Know

Jaime Tollas

Maternity Leave: What You Need to Know is written by San Francisco-based employment attorney and contributing editor Holly L. Sutton.

Ah, the age-old question for new moms everywhere: will you or won’t you go back to work?  The old June Cleaver ideal has been replaced by the Lean In movement, and somewhere in the murky middle lies your first few months after baby — precious time for bonding and generally figuring stuff out.  

Time otherwise known as maternity leave.  

Time otherwise known as: How much do I get?  How much can I take?  How much will I get paid?  And then what?

Here’s the good news: maternity leave in the US is a right protected by federal law.  Here’s the bad news: family leave options differ from state-to-state, and how much you get paid during your leave can very depending on your employer and your tenure.  In short, it’s confusing, but it’s in your best interest to understand as much as you can.

Step 1: Know Your Employer

While it is important to understand the maternity leave options offered under both federal and state law, you should also be sure to learn about your employer’s policies regarding maternity leave.  They may provide greater protection and benefits than you would be entitled to under the law.  Even if your employer does not have an official policy regarding maternity leave, it may be willing to agree to an individualized arrangement that works for you.  Also, if you are covered by a collective bargaining agreement, you should familiarize yourself with its leave provisions.

Step 2: Know Your Rights Under Federal Law: What It Guarantees…and What it Doesn’t

The Family and Medical Leave Act (FMLA) is a federal law that provides for unpaid time off from work to bond with a newborn, a newly adopted child, or a newly placed foster care child (family leave).  Your employer must comply with the FMLA if it employs 50 or more employees or if it is a public agency of any size.

If your employer fits the bill, you qualify for family and medical leave under the FMLA if:

  • You’ve worked for your employer for at least 12 months;
  • You’ve worked at least 1,250 hours in the 12 months before the first day you’d like to take leave (different rules apply if you are a teacher or if your employer is not required to keep records of your hours); and
  • There are at least 50 employees at or within 75 miles of your worksite.

In most cases, the FMLA requires that you request leave at least 30 days before you’d like your leave to begin.  Of course, we all know that pregnancy doesn’t always go according to plan, so if your need for leave is unexpected, you should notify your employer as soon as possible (generally within a day or two).  Your employer may also have certain guidelines you must follow for giving notice.  Needless to say, now is a good time to get to know your HR rep! 

If you are eligible for leave under the FMLA, you have a right to:

  • A total of 12 weeks of unpaid leave per year for family leave and medical leave;
  • Post-leave reinstatement to the same job or an equivalent job with equivalent pay, benefits, and terms and conditions of employment (although some highly paid key employees may be denied reinstatement under certain circumstances);  
  • The continuation of group health insurance benefits while you’re on leave (although you may have to pay any premiums you would have been required to pay if you were working).

The FMLA provides for a total of 12 weeks for both family and medical leave in a given year.  If you use some portion of the 12 weeks to take time off for medical reasons before your child is born, that portion will be deducted from the leave you may take after your child is born.  This includes any period of incapacity due to complications with your pregnancy (including severe morning sickness), or doctor-ordered prenatal care.  You should also be aware that if you are married and work for the same employer as your husband, the FMLA provides for a total of 12 weeks of leave for you both (not 12 weeks for each of you) — although your employer’s policies may provide otherwise.

The key takeaway here is that you don’t necessarily have to take all your leave at once.  Maybe you and your husband take turns taking leave.  Maybe you’d like to try a reduced work schedule, with your leave making up some of the days you aren’t there.  These are all options, but you MUST talk to your employer: these types of arrangements are only permissible under the FMLA if your employer agrees to them.  Also, leave to care for your newborn must be finished within the first year of your child’s birth.

Once again, though, there are variations between states.  The state you live in may have special laws regarding time off for pregnancy-related illnesses (those are discussed in more detail below).  Also, breastfeeding is handled differently across state lines: for example, under California law, women are generally entitled to a reasonable amount of break time to express milk at work, and to have access to a private place (other than a bathroom) in which to do so.  But not all states have this provision (and speaking from experience, a “private place” can run the gamut from a serene “mothers’ room” to a glorified storage closet).

One of the most important things to understand about FMLA is that although it guarantees 12 weeks off to bond with your new child and post-leave reinstatement, it does not guarantee that you will be paid for any or all of your leave.  This is why a lot of women “bank” their paid leave (vacation or sick leave) before the baby comes: you can choose to substitute any paid leave you have accrued (whether it be vacation, personal, or employer-provided family leave) for any or all of the FMLA’s 12 weeks.  (In some cases, your employer might require such substitution.)  You or your employer can also replace unpaid medical leave that you take for pregnancy-related complications with accrued paid sick leave.

While your paycheck isn’t guaranteed on leave, however, your health benefits are.  (Note: if you decide not to go back to work after your leave period has ended, you may have to pay your employer back for health care premiums paid on your behalf during your leave.)  What about life insurance?  Disability?  This depends on your company’s policy: if your employer maintains these types of benefits for those out on other kinds of unpaid leave, it must give you the same treatment while you’re out on family or medical leave.  And if it doesn’t have this type of policy, you can always ask.

Step 3: Know Your Rights Under State Law

A recent report provided a detailed review of the parental leave programs provided by each of the fifty states and the District of Columbia.  The bad news?  No state is doing all that it can to help working moms manage time off from work to care for their newborns.  The good news?  Many states have put programs in place that provide for expanded job protection and/or access to some form of paid maternity leave — even for women who don’t qualify for the FMLA.

Just as now is a good time to get to know your friends in HR, it’s a good time to do a little research on your state’s maternity leave laws.  After all, the FMLA sets forth a minimum standard.  But many states, like California, New Jersey, and Rhode Island, offer more generous systems of support.  Expectant women in California are covered by pregnancy disability leave, which is separate from the baby-bonding leave and does not count against your 12 weeks off if you need to take time off for prenatal complications.  And all three of the above-mentioned states offer paid leave benefits programs which calculate state-sponsored pay (usually a percentage of your salary) for the weeks you are on leave.   

If your employer is not covered by the FMLA, or if you are not eligible for FMLA leave, these state-sponsored protections may be your best bet: when multiple laws apply, you are entitled to take advantage of the laws which provide you with the highest level of protection and benefits.  For more detailed information about your particular state, speak with your HR representative, or visit the National Partnership for Women & Families’ complete report on state-by-state parental and family leave programs.

Greater Job Protection, More Than 12 Weeks of Leave, and Paid Family and Medical Leave

As discussed above, the FMLA covers only those private employers with at least 50 employees and provides for a maximum of 12 weeks of leave.  Many states provide for job-protected leave for those working for smaller employers, some offer more than 12 weeks of leave, and some provide for other kinds of job protection.  

Additionally, while family and medical leave under the FMLA is unpaid, several states now offer some form of paid maternity leave.  In addition, several states have short-term disability programs that provide partial pay for women who are unable to work due to pre-birth complications or because they are recovering from their child’s birth.  

Following this article is a list of some states that have greater job protection and longer leave periods, and a brief summary of what they offer.   Note that this list is not exhaustive and there may be other states benefits. 

There are many factors to consider in understanding your maternity leave rights.  When in doubt, go back to Step 1 and KNOW YOUR EMPLOYER!  This time with your baby is precious and important for both of you -- for bonding and healing and deciding what works best for your family.

Photos: Laura Kudritzki Photography
Make-Up: Amanda Storey
Hair: Justin Lee, Cinta Aveda Institute

Shot on location at Sprout Online, San Francisco

 

ADDITIONAL INFORMATION:

Below is a list of some states that have greater job protection and longer leave periods, and a brief summary of what they offer.   

  • Connecticut:  Employees working for employers with at least 75 employees are entitled to 16 weeks of leave in a 24-month period to care for a new child or because of a maternity-related disability.  Also, women with pregnancy-related disabilities are entitled to a reasonable leave of absence if their employer has at least 3 employees.
  • Hawaii:  All working women have a right to job-protected medical leave for a reasonable period of time for pregnancy or childbirth disability.
  • Iowa:  Pregnant women who work for employers with at least four employees are entitled to eight weeks of leave for pregnancy, childbirth or related medical conditions.
  • Louisiana:  Women disabled by pregnancy, childbirth and related medical conditions who work for employers with more than 25 employees are entitled to up to four months of short-term disability leave.
  • Maine:  Employees working for employers with at least 15 employees are entitled to up to 10 consecutive weeks of family and medical leave over two years to care for a newborn child and for pregnancy disability and childbirth recovery.
  • Massachusetts:  Women working for employers with at least six employees are entitled to a maximum of eight weeks of maternity leave for a new child.
  • Minnesota:  Employees working for employers with at least 21 employees are entitled to up to six weeks of leave for their child’s birth.
  • Montana:  Employers with at least one employee must provide a reasonable leave of absence to any female employee with a pregnancy disability.
  • New Hampshire:  Women who are disabled due to pregnancy, childbirth or related medical conditions and who work for employers with at least six employees are entitled to leave.
  • New Jersey:  Employees working for employers with at least 50 employees may take a maximum of 12 weeks of unpaid leave in 24 months to care for a new child.  This leave is on top of any medical leave an employee takes under the FMLA, and, for birth mothers, is on top of leave taken for a pregnancy disability and/or childbirth recovery.
  • Oregon:  Employees working for employers with at least 25 employees have a right to 12 weeks of unpaid family and medical leave per year.  Women who take this leave for pregnancy-related disabilities or childbirth recovery may also take an additional 12 weeks per year to care for a newborn child.  Another 12 weeks is available to take care of a child who is ill and needs home care, but does not have a serious health condition. 
  • Rhode Island:  Employees working for employers with at least 50 employees are entitled to 13 weeks of parental leave over a two-year period for the birth of a child.
  • South Carolina:  Women working for employers with at least 15 employees may not be fired for taking time off for a pregnancy disability or for childbirth recovery.
  • Tennessee:  Women who have worked full-time for an employer with at least 100 employees for at least 12 consecutive months are entitled to four months of leave for pregnancy, childbirth, and nursing.
  • Vermont:  Women working for employers with at least 10 employees are entitled to a maximum of 12 weeks per year for pregnancy or to care for a new child.
  • Washington:  Job protection is provided for leave taken for pregnancy and childbirth disability for women working for employers with at least eight employees.  Those women who work at least 35 hours a week for larger employers (more than 100 employees) have a right to job-protected leave for disability due to pregnancy or childbirth and to 12 weeks of leave to take care of a new child.
  • District of Columbia:  Employees working for employers with at least 20 employees are entitled to 16 weeks of family leave to care for a new child and 16 weeks of medical leave for pregnancy disability and childbirth recovery over a two-year period.

Several states now offer some form of paid maternity leave, or short-term disability programs that provide partial pay for women who are unable to work due to pre-birth complications or because they are recovering from their child’s birth.  Below is a brief synopsis of these states’ paid medical leave programs.

  • California:  Women working in California who are covered by the state’s disability insurance program can apply for paid disability leave for pre-birth pregnancy disabilities and post-birth recovery.  
  • Hawaii:  Working women have a right to up to 26 weeks of temporary paid disability benefits for pregnancy or childbirth disability, but may have to shoulder some of the cost of temporary disability insurance.
  • New Jersey:  Women who cannot work due to pregnancy and post-birth recovery have a right to up to 26 weeks of short-term paid disability benefits.  
  • New York:  Women working for employers with at least one employee may take a maximum of 26 weeks of paid leave for pregnancy disability and childbirth recovery.
  • Rhode Island:  Women who cannot work due to maternity disability can receive up to 30 weeks of paid benefits. 

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