Maternity leave is the time an employee takes off of work to care for their new baby. This is also commonly referred to as pregnancy or parental leave. Sometimes, a person will start their maternity leave a few weeks before the baby is due to arrive if the situation calls for it or if the employer otherwise agrees to this arrangement.

Maternity leave can be granted federally through the Family and Medical Leave Act (FMLA), through a state law, and/or by your individual employer. Many employers now grant paternity leave as well to ensure that a father gets leave to care for the new baby and mother.

When you or your spouse gets pregnant, it is important to know what parental leave laws and company policies will apply. If you adopt or foster a child, parental leave policies and laws will also apply in most circumstances. If you are treated differently or retaliated against for having a baby, you may have grounds for a discrimination lawsuit.

Who Qualifies for Maternity Leave Under the FMLA?

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 involved in interstate commerce.

Keep in mind that state law may also require that a private employer provide maternity leave in certain circumstances. If you do not work for an employer covered under the FMLA, look to your state’s law or company policies regarding maternity leave for more options.

To qualify for unpaid leave under the FMLA, employees need to meet the following requirements:

  • You are the mother or father of the new child who needs care;
  • You had full time employment at your job for 12 months before using FMLA leave; and
  • The 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 off total for a healthy pregnancy and birth. You may be able to split this time up throughout the first year, with employer approval. However, if both parents work for the same employer they may have to split this time between both of them.

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

How Do I Get Paid Maternity Leave?

While it is nice that 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. However, there is currently no comprehensive U.S. federal law that guarantees paid leave for mothers taking maternity leave.

Only some state laws have paid family leave programs, all of which offer different benefits to employees. These states are California, New Jersey, New York, Rhode Island, Washington, Oregon, Connecticut, and Massachusetts. The District of Columbia offers a paid family leave program as well. If you live in one of these states, you should find out your rights. Keep in mind that laws are always changing so your state may pass a paid family leave law in the future.

A lot of employers will offer paid leave to their employees, even if the person is using FMLA leave. Remember that this is not a guarantee. Some employers will have a separate maternity and/or paternity leave program. Others will allow a person to use sick or vacation leave to cover the days away from work. Again, this will all depend on your employer and is totally up to their discretion. Make sure to be familiar with your employer’s policy on maternity leave.

When Can I File a Claim for Discrimination?

If you were treated differently because you took maternity leave, you may have a case for pregnancy discrimination. Grounds for a pregnancy discrimination case include termination, discipline, job demotion, retaliation, or differential treatment. You could be entitled to various damages and reasonable accommodations for these actions.

Fathers also have rights to take leave to care for their spouse and may have a discrimination and/or FMLA case if they are terminated or treated differently for doing so.

Can a Lawyer Help Me with my Maternity Leave Issue?

If you have a maternity leave issues, especially if you think that it rises to the level of discrimination, you should contact an experienced employment lawyer in your area. A lawyer can review your situation and let you know if you are entitled to leave through your employer, FMLA, and/or the state. A lawyer can also provide an assessment about whether you have a discrimination case and your chances of prevailing if you went to court.