Maternity leave can be complicated. How much time do I get to take? Do I get paid? What happens when I’m ready to return to work? Despite how important these questions are to every working parent, they are often complicated to answer. To help new parents we wrote this article to provide a general overview of maternity leave laws in the United States. Our goal is to provide new parents a “lay of the land” so you can start planning the steps ahead and, ideally, coordinate with your employer(s) to make sure you have all the time necessary to bond with your new baby, recover physically, and prepare emotionally to start the next phase as a working parent.
First Thing’s First, What Does Your Employer Offer?
Before doing any legal research, it may be wise to simply determine what type of leave packages your employer offers. While all employers are obligated to follow the law, many actually go beyond these baseline expectations and provide more generous leave packages to expecting parents. You don’t want to show up to work asking for 12 weeks of unpaid leave (the national standard) when your employer would have given you more leave, a combination of paid and unpaid leave, or simply let you dictate the terms of your leave (e.g., “come back when you’re ready!”). For that reason, it makes sense to start by determining what your employer’s internal policies are so you can compare them to the laws that apply.
Many employers set forth their maternity leave policies in employee handbooks, so that is a great place to start. You can also check for postings in places like breakrooms or communal kitchens. If your workplace is less formal and there are no written policies, it may make sense to ask your coworkers, supervisors, or HR representative what policies apply – provided you’re comfortable doing so. If you don’t have any luck with that approach and cannot determine what policies apply at your particular employer, it may be best to simply do some legal research. This way you will know the baseline of what your employer is required to provide before making your request for leave.
How Do I Figure out What Laws Apply to Me?
The next step in determining whether you are entitled to leave is figuring out what laws apply to you and your employer. This depends on three primary factors: (1) your geographic location; (2) the size of your employer; and (3) the duration of your employment. Let’s go over each of these factors and try to explain what you should be looking for.
Your Geographic Location
There are three legislative bodies that pass maternity leave laws in the United States – federal, state, and local governments. Federal laws apply to all states, while state and local laws only apply to residents within those jurisdictions. The most widely applicable federal law, the Family and Medical Leave Act (FMLA), applies in all states and should be considered the “baseline” of what is required in the United States. State and local laws cannot circumvent FMLA requirements. That said, the FMLA does not apply to all employers or all employees (see below) and most states, unfortunately, do not provide any additional coverage in addition to what is required by the FMLA.
Still, it makes sense to look into what state-specific laws are in effect. Every state is different, but this can usually be accomplished with a Google search. Do not be discouraged if you strike out because most states have no state-specific maternity leave laws, in which case only the FMLA applies.
Other states, like California, will have multiple pregnancy leave laws that increase the amount of leave employees are entitled to and are applicable to more employers than the FMLA (like CFRA and PDLL). Lastly, check for any local laws or ordinances. These are the least common laws and are probably not applicable because they are rare. However, if you live a major, left-leaning city like San Francisco there may be additional leave laws that are applicable to you and/or your employer. Make note of any you believe apply to your situation.
After doing some basic research, make a list of the laws that you believe apply to you based on your location (federal, state, and local). In most states, it will only be the FMLA and no state or local laws. After you’ve double-checked your list, move on to determining the size of your employer.
The Size of Your Employer
Most maternity leave laws do not apply uniformly to all employers. Instead, larger employers are typically expected to provide more leave than smaller employers. Generally speaking, the size of the employer is measured by the number of employees they directly employ. For instance, the FMLA applies to employers that have at least fifty (50) employees within a seventy-five (75) mile radius. Even if an employer has 50 employees but no locations with 50 employees within a 75-mile radius, none of the employees would be eligible to take FMLA leave. This is why, generally speaking, FMLA leave only applies to relatively large companies. Other laws, like the California Family Rights Act (CFRA), apply to all employers who directly employ five (5) or more persons – there is no “radius requirement.”
With this in mind, try to estimate the size of your employer. Some thresholds will be very easy to determine (i.e., five or more people). Other thresholds will be more difficult to determine. If necessary, use Google maps to mark all of the locations within a 75-mile radius of the location you work and tally up the number of employees that work at every location. At the end of the day, a good rule of thumb is that most laws apply to large employers while small and medium size employers will have less laws that apply to them. Employers that are covered by the FMLA are also required to have a posting in common areas in your place of employment, so it may be worth checking those posters if you think it is a close call.
The Duration of Your Employment (i.e., Your Tenure)
Maternity leave laws also do not apply uniformly to all employees. Employees that have only been with a company for a very short period of time may not be entitled to leave at all, whereas employees that have worked full time for a year or longer will almost always be entitled to all applicable leave. In order to be entitled to FMLA leave, for example, an employee must have worked: (1) at least twelve (12) months for the employer in the preceding seven (7) years (with limited exceptions); and (2) at least 1,250 hours for the employer over the twelve (12) months preceding the date the leave would begin.
Every law has different tenure requirements, which can be frustrating, but the good news is that this should be relatively easy to quantify on your own. Simply determine when you first started working for your employer, how many weeks have elapsed since your start date, and how many hours you work per week on average. Having those numbers, along with some simple multiplication, should enable you to determine if you qualify for FMLA leave (or any other applicable leave laws).
Putting it all Together
Now that you’ve determined what laws apply, how large your employer is, and whether you’ve worked for the required amount of time, you can put it all together. We recommend using a chart or checklist to see what laws you qualify for. For instance, to be eligible for FMLA leave, you must:
Have worked at least twelve (12) months for the Company in the preceding seven (7) years (limited exceptions apply to the seven (7) year requirement);
Have worked at least 1,250 hours for the Company over the twelve (12) months preceding the date your leave would begin; and
Currently work at a location where there are at least fifty (50) employees within seventy-five (75) miles.
Nearly every leave law will have a similar (or identical) list of requirements, so make note of which laws (federal, state, and local) you and your employer qualify for. After you’ve determined what laws apply, you can look into the specifics of how much leave they provide and whether that leave is paid.
How Long is Maternity Leave?
There is no simple answer to how long any given maternity leave is in the United States, but there are some generally applicable benchmarks. If you are eligible for FMLA leave, you may take up to twelve (12) weeks of leave for the birth of a child (including time for bonding with the child after birth) by statute. Most states do not provide statutory leave in addition to the 12 weeks required under the FMLA. However, individual employers may provide additional leave as a perk of employment, which is why it’s important to make sure you review your companies’ policies and/or speak with an HR representative.
Other states, like California, greatly exceed the 12 weeks provided by the FMLA. For instance, an employee in California can get 12 weeks of leave for the birth of a child under the CFRA, which applies to all employers with 5 or more employees. California also provides four months (17 1/3 weeks) under California’s Pregnancy Disability Leave Law (PDLL). Because PDLL leave and CFRA leave sometimes run concurrently, a female employee may receive as many as seven months of unpaid, job protected leave associated with the employee’s pregnancy and child birth by statute.
Do I Get Paid?
Unfortunately, most laws only provide for unpaid leave. This means that your employer does not need to pay you for the time you spend on leave. There are a few caveats to this rule. First, your employer must continue to provide the same health benefits they currently provide throughout your FMLA leave. You may be required to continue to make any contributions you were making prior to the start of your leave, but you are still entitled to benefits. Second, there may be a state run program that provides compensation for new parents on leave. In California, for example, the California EDD (the same department that provides unemployment benefits) provides Paid Family Leave (PFL) benefits to bond with a new child (among other things).
If eligible, employees can receive benefit payments for up to eight weeks. Payments are typically about 60 to 70 percent of employee’s weekly wages earned 5 to 18 months before the start of their claim date. Third, in some states pregnant women can also receive disability insurance (DI) before their due date and after to recover from child birth.
So, while your employer may not be required to pay for your leave, you may be able to find other state-run programs that compensate you for the time you are recovering and bonding with your new addition to the family.
What Happens When I’m Ready to Return to Work?
After you’ve taken your leave, your employer must reinstate you to the same position at the same rate of compensation that you received prior to your leave. There are very few exceptions to this rule and, generally speaking, it is illegal for you to be place in a different position upon your return. Most employers, and their attorneys, know this is the law and will place you back into your same position without issue. If you find that is not the case, it may be wise to contact a local attorney to discuss your options.
Conclusion
While we’ve provided a brief overview of maternity leave laws in the United States, this article is by no means comprehensive. There are many, many caveats and nuances to the rules we’ve set forth above. For example, if your pregnancy results in a temporary disability, which is not uncommon, it may entitle you to additional time off. This is why it is very important to do your research, talk with your HR representative, and work with your physicians to make sure you are getting the time you need.
If you have any questions about any of the topics in this article, we encourage you to do additional research. Your local public law library can be a great, free resource. If you continue to have questions, you may ultimately need to contact an attorney that is familiar with the laws in your jurisdiction. Finally, we wish you and your new family all the best. We want to encourage you to focus on the big picture and avoid being “bogged down” in work-related issues during this special and memorable time.
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