Know Your FMLA Maternity Leave Rights

What are your legal rights regarding family leave from work? Here's what you're entitled to under The Family and Medical Leave Act (FMLA).

newborn baby on mom lap
Photo: Natalia Deriabina/Shutterstock

The term "maternity leave" has become so much a part of our common vocabulary that we assume it's a fact of working life. But there is no nationwide standard or law that applies to everyone. To get time off, retain your job, and receive any pay at all, you must rely on a patchwork of federal, state, and individual company policies.

The bottom line? You could fall through the gaps of the system if you're not prepared. That's why it's so important to know what you're entitled to in your work situation long before you pack your bag for the hospital.

Defining Maternity Leave

The term "maternity leave" encompasses two types of leave:

Maternity disability or medical leave refers to the period of time (usually six weeks for a normal vaginal delivery and eight weeks for an uncomplicated cesarean delivery) after the birth, during which you are medically unable to work as you recuperate.

Family leave refers to the time you spend caring for your baby after recuperating. The Family and Medical Leave Act (FMLA) of 1993 grants all parents the same 12 weeks (it's all considered family leave for fathers and adoptive parents). You can begin the 12 weeks before you give birth, but then you'll have less time afterward.

How FMLA Works

FMLA provides new parents — including fathers and adoptive parents — with 12 weeks of unpaid leave to care for a newborn or newly adopted child.

When your leave is over, your employer must reinstate you to the same or an equivalent job. And if your employer provides health insurance, the company or organization must continue to provide it during your leave. But to qualify, you must work for a company that employs at least 50 people within a 75-mile radius. On your end, you'll need to have worked for the company a minimum of 12 months and 1,250 hours.

Depending on your company or the state you live in, you may receive medical leave or maternity disability, which refers to the period of time (generally six weeks for a normal vaginal birth, eight weeks for an uncomplicated cesarean delivery) that you are medically unable to work as you recover from childbirth. If you're not covered by FMLA, it's all the time you get. If you have the coverage, this disability period is part of your 12 weeks. In other words, you can't take 6 weeks of medical leave after your baby is born and then tack on 12 weeks of FMLA.

It's a start. "But it still leaves out a lot of people," says Debra Ness, president of the National Partnership for Women & Families in Washington, DC. FMLA leaves many behind; people who are self-employed or who work in small businesses, such as a neighborhood grocery or restaurant. And even if you have both FMLA and medical or disability leave, you may still run into problems.

If you give birth to a preemie who is in the hospital for four weeks after birth, you'll only have the remaining eight to spend with her. And if you have a complicated pregnancy that requires weeks of bed rest, you may use up all of your leave before you even give birth. Ultimately, says Ness, "We're still a long, long way from where we need to be."

Who Is Covered by FMLA

The FMLA covers those who meet each of the following criteria:

  • They have been at their current job for at least 12 months and 1,250 hours
  • They are employed by a company with at least 50 employees within a 75-mile radius

What Your Company Must Do Under FMLA

If all of the above criteria are met, the FMLA requires a company to:

  • Provide for 12 weeks of unpaid leave to care for a newborn or newly adopted child
  • Continue prior health insurance coverage during time off
  • Allow the employee to return to the same or an equivalent job

However, a company can require an employee to make vacation and sick days part of the 12 weeks off.

Paid Maternity Leave and FMLA

Time off is one thing; money is another. Only four states — New York, California, New Jersey, and Rhode Island — currently offer paid family and medical leave.

In order to get any pay while you're on leave, your company must offer paid leave or provide temporary disability insurance as a benefit; such insurance pays about 60 percent of your wages. Unfortunately, many companies don't do either.

If you're lucky enough to live in New York, New Jersey, Hawaii, or Rhode Island, you may be eligible for their state-run disability plans, many of which provide about 60 percent of your pay during the first six to eight weeks postpartum that you're medically unable to work (New York provides up to $170 per week maximum). But there's a cap on how much pay you can receive; most states max out at $600 per week.

Law-wise, Californians are the luckiest women of all. Not only does the state boast a state-run disability plan, but it also funds family leave through a $1-per-week payroll deduction. Workers there can get six weeks of family leave insurance payments at about 55 percent of their salary, up to approximately $728 a week. That means that no woman in California has to go for 12 weeks without pay. A new mom could draw on her state disability for her first six to eight weeks postpartum. Then, she would receive family leave insurance until she gets to 12 weeks.

If none of the above situations apply to you, you may be able to use accrued vacation, sick days, or personal days to help you get by. But the option of using sick leave is simply not a reality for many. "Half the workforce has no paid sick days, and only one in six part-time workers has any paid sick leave," says Ellen Bravo, director of 9 to 5, the National Association of Working Women. What's more, some companies don't allow employees to use their sick days to care for others, even a new baby. So for women in the workplace, it makes sense to know your company's policy before your pregnancy so you can plan financially.

Other Maternity Leave Laws

If your employer is not bound by any leave laws, you may find help through the Pregnancy Discrimination Act of 1978. If your company has 15 or more employees and held a person's job during another type of medical disability — say, a heart attack or car accident — then it must reinstate you after medical disability due to pregnancy.

Some states also have their own state family leave laws, including California, Connecticut, D.C., Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington and Wisconsin, most of which have expanded either the amount of leave available or the classes of persons for whom leave may be taken.

Maternity Leave Legal Resources

If you have questions about what you're legally entitled to, here's where to start:

National Association of Working Women

For advice from the Job Survival Hotline, call 800-522-0925.

National Partnership for Women & Families

For information on the FMLA and various state laws, call 202-986-2600

U.S. Department of Labor

For more information on the FMLA, or if you are denied leave or reinstatement to work, call 800-827-5335

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