Maternity Leave

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 What Is The Family And Medical Leave Act?

The Family and Medical Leave Act, or “FMLA,” is a federal labor law passed in 1993 requiring specific employers to provide employees with job protected and unpaid leave for qualified medical and family circumstances. The FMLA provides rights and protections associated with medical leave for employees, and can continue unpaid leave for up to twelve weeks.

Additionally, the Act requires that covered employers preserve health benefits for all eligible workers, so it is as if they were still actively working. During this time, the employee’s position is protected, meaning that they may not be terminated.

Because it is a federal law, the Act preempts state laws when those laws conflict with each other; meaning, employees in states that offer little or no family and medical leave could still be protected under the FMLA. Some states may provide more coverage, but most states do not provide more leave than what is required by federal law.

Additionally, not all employers are required to provide the benefits that are required by the FMLA. Federal law states that employers are required to provide all eligible employees with leave under the Act if the employer meets one of the following criteria:

  • The employer is a state, local, or federal governmental agency;
  • The employer is a private business that conducts interstate commerce, with fifty or more employees that work twenty or more weeks in one year; or
  • The employer engages in commerce, or an industry that affects commerce. It is important to note that nearly every business meets the requirement for being commerce or affecting commerce.

Employers have some specific responsibilities under the FMLA, such as not being permitted to terminate an employee who takes family or medical leave for any reason as outlined in the FMLA. Employees who are working for employers covered by the FMLA have a right under federal law to take leave if they qualify, and employers cannot reprimand the employee for taking this leave. Additionally, the employer may not discriminate when granting FMLA leave.

What Employees Are Covered By The FMLA?

In order to be eligible for coverage under the FMLA, all three of the following criteria must be met:

  1. The employee must have worked for the employer for the last twelve months;
  2. The employee must have worked at least 1,250 hours over those last twelve months; and
  3. The employee must be employed by an employer who is covered under the Family and Medical Leave Act.

Additionally, the employee must also have a qualifying life event occur that would trigger a need for the FMLA. Some examples of qualifying life events include:

  • The birth and care of a newborn child, which will be further discussed below;
  • The placement of an adopted or fostered child, that was placed within one year since applying for leave;
  • The employee must care for an immediate family member with a serious health condition;
  • The employee has a serious condition which makes them unable to perform essential functions of their job, including pregnancy or prenatal care; and/or
  • The employee’s spouse, child, or parent is an active military member and is called to active duty.

Additionally, employees may take up to 26 weeks of leave in twelve months, if they take leave in order to care for a spouse, child, parent, or next of kin that is a service member who has experienced a serious injury or illness.

However, in general, every employee is limited up to 26 weeks of combined leave over a twelve month period. Eligible employees are entitled to take time off to care for themselves, or for family members, and are entitled to some of the following benefits:

  • Twelve weeks of unpaid leave;
  • Medical and/or health benefits during their leave; and
  • The restoration of their original position once they return to work and their leave has ended.

In general, employees cannot lose their job for taking Family and Medical Leave Act leave. To reiterate, employers cannot reprimand employees for taking FMLA leave, and employers may not interfere with the FMLA protected rights of the employee. Employers cannot use FMLA leave as an adverse factor in any future employment evaluations, such as promotions or raises.

Who Qualifies For Maternity Leave Under The FMLA?

Maternity leave refers to the time in which an employee is away from work to care for their new baby. This is also commonly referred to as pregnancy or parental leave. A person may start their maternity leave a few weeks before the baby is due to arrive, if the employer agrees to this arrangement.

Maternity leave can be granted federally through:

Many employers now grant paternity leave as well, in order to ensure that the other parent gets leave to care for the new baby and the birthing parent.

When you or your spouse gets pregnant, it is important to know what parental leave laws and company policies will apply to you. If you adopt and/or foster a child, parental leave policies and laws will generally apply. If you are treated differently or retaliated against for having a baby, you may have grounds for a discrimination lawsuit, which will be further discussed later on.

The following employers are mandated to provide unpaid FMLA maternity leave to their employees:

  • Federal government employers;
  • Public employers; and
  • Private employers with 50 or more employees who are involved in interstate commerce.

In order to qualify for unpaid leave under the FMLA, employees must meet the following requirements:

  • You are the parent of the new child who needs care;
  • You had full time employment at your job for 12 months before using FMLA leave; and
  • That leave is taken within 12 months of the birth of your child, or the placement date in the case of adoption or foster care.

The general allowance for FMLA leave is up to 12 weeks total for a “healthy” pregnancy and birth. You may be able to split this time up throughout the first year if your employer approves. However, if both parents work for the same employer, they may have to split this twelve weeks between both of them.

If the birthing parent is incapacitated or has birth complications, they can take additional FMLA leave during this period. Their spouse can also take extra time off if needed to care for the parent who suffered a birth complication.

How Do I Get Paid Maternity Leave?

Although the FMLA provides guaranteed leave in many circumstances, many people will require paid leave in order to remain financially stable after having a child. Several other countries provide this protection and offer paid benefits, but there is currently no comprehensive U.S. federal law that guarantees paid leave for pregnant employees taking maternity leave.

Some state laws have paid family leave programs, including:

  • California;
  • New Jersey;
  • New York;
  • Rhode Island;
  • Washington;
  • Oregon;
  • Connecticut; and
  • Massachusetts, as well as the District of Columbia.

Many employers will offer paid leave to their employees, even if the person is using FMLA leave, while other employers will have a separate maternity and/or paternity leave program. Still others will allow a person to use their sick or vacation leave to cover the days away from work.

Can I File A Claim For Discrimination?

If you were treated differently because you took maternity or parental leave, you may have a case for pregnancy discrimination. Grounds for a pregnancy discrimination case include, but may not be limited to:

  • Termination;
  • Discipline;
  • Job demotion;
  • Retaliation; and/or
  • Differential treatment.

You could be entitled to various damages and reasonable accommodations for these actions. Additionally, the parent who does not birth the child also has rights to take leave in order to care for their birthing spouse. They may have a discrimination and/or FMLA case if they are terminated or treated differently for doing so.

Do I Need A Lawyer For Help With Maternity Leave Issues?

If you have maternity leave issues, especially involving discrimination, you should contact an experienced employment lawyer in your area. An attorney can inform you of your rights and legal options according to your state’s specific laws, and will also be able to represent you in court, as needed.

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