FMLA for pregnancy: Frequently Asked Questions

When a person takes time off from work when they give birth to a child, it is called "Maternity Leave."

While some companies have policies that give expecting mothers and their partners paid time off, most often those individuals have to use short-term disability, sick leave, vacation, personal days, and/or the Family and Medical Leave Act (FMLA) to spend time with their new baby. There are many frequently asked questions about FMLA.

What is the Family and Medical Leave Act? FMLA is a requirement that larger employers give their employees up to 12 weeks of unpaid leave to deal with serious health conditions either for themselves or for an ill family member. This leave is dictated by FMLA.

Can I use the FMLA for pregnancy leave? Because giving birth to a child or dealing with the complications surrounding the birth is considered a serious health condition according to FMLA, then yes, you can use FMLA for pregnancy leave.

There are three different types of leave under FMLA: adoption, postpartum conditions, and parental leave for child care. If a doctor decides that additional leave is required for the patient, then those employees will be allowed to use FMLA.

With parental leave under FMLA, parents who have adopted a child may also use FMLA. This can be used at any time within the first year after the child is adopted.

Another type of leave it intermittent parental leave. Sometimes new parents want to only work part-time after they have their child, or they may want to take time off immediately following the birth or adoption of their child.

Do I qualify for FMLA leave? FMLA applies to employees if they have worked for a company that has more than 50 employees.

FMLA also applies to Federal, state, and local government workers. In this case, employees must have worked for the government entity for at least 12 months and 1,250 hours in the previous year.

Is my leave paid when I take FMLA for pregnancy? There are few employers who offer paid pregnancy or parental leave, so you may or may not have paid leave available to you.

Can I be denied FMLA for pregnancy? Mothers and fathers cannot be denied FMLA unpaid leave under the Act. The law requires that employers allow employees under FMLA to return to the job they left or to a similar job with the same salary, benefits and working conditions as they had before.

Your Rights Under FMLA

FMLA requirements can vary based on a company’s size, the mother’s employment status, and other aspects. Therefore, if you are going to be having a child — or you’ve already given birth — it is a good idea to familiarize yourself with the maternity leave rights at your job.

Some companies don’t pay their employees much, or at all while on FMLA leave, it’s nice to be able to get some continuing compensation while you're not at work because you had a child.

While you may not think you are entitled to paid time off, you do have some guaranteed time off through FMLA.

Using Your FMLA Leave for Different Reasons

You could potentially have seven weeks off from work for pregnancy. You could take three weeks of FMLA leave, and then another two weeks of paid time off or sick time after you give birth. While you may use all of your FMLA leave all at once, the reason for the leave is important because the rules are a bit different for each.

First, you can intermittently use FMLA parenting leave (like if you return to work part-time), but your employer has to agree. You can also take FMLA leave until the baby is one-year old. For example, if you use only six weeks of FMLA leave for the actual birth/recovery and then returned to work, you would still have six weeks of parenting leave to use during that year.

Regarding spouses, employers can tell spouses that they may take 12 weeks of time off. Note that this rule is only for same-sex or opposite-sex couples – not unmarried couples.

Other Leave Laws

In addition to the FMLA, there are other federal and state laws that allow you to have time off work for pregnancy and parenting.

Under the Pregnancy Discrimination Act, temporary disability due to pregnancy has the same benefits as any other temporary disability.

What is Maternity Leave and How Long is Maternity Leave?

Maternity leave is the period of time when a mother stops working because she is about to have — or has just had (or adopted) — a baby.

Some companies offer partially paid leave or a program that may technically be a sick leave or short-term disability policy that pays you during your leave of absence.

Some companies offer partially paid leave or a program that may technically be a sick leave or short-term disability policy that pays you during your leave of absence.

Can I Take Both Paid and Unpaid Maternity Leave?

If you’re fortunate enough to receive paid maternity leave, your paid leave and FMLA run concurrently — meaning that the time you take off for paid maternity leave counts toward your 12-week FMLA protection

The federal and state laws may protect your job with unpaid maternity leave.

Some companies offer unpaid leave policies on top of their paid leave or STD-supported maternity leave

Do I Pay Taxes on Maternity Leave or Short-Term Disability Payments?

Maternity leave pay funded by your employer is no different from your paycheck — so you will have to pay taxes on it just as you would on your regular salary which is yes.

Similarly, if you receive disability benefits from your employer who has been paying insurance premiums, that is a taxable benefit

But if you’ve been paying for the disability insurance yourself, the benefits you receive are tax-free

When Do I Have to Go Back to Work?

Due to varying situations, some people may choose to work part-time initially, which affects how much they are paid and how many benefits they receive.

If you work officially in any way, however, this can also change what short-term disability payments you receive, since those funds are determined based on your inability to work. Therefore, if you need to be on maternity leave for a loner time, you should save up any personal, sick, and vacation days that you have available to you before you give birth.

What If I Decide Not to Go Back to Work?

If you decide to not go back to work after having your baby, which some people choose and which is a personal choice that you are entitled to, then you may have to pay back part of whatever benefits you were paid. Ensure that you discuss this option with your HR department before you make a choice.

What If I Get Fired While I’m Pregnant or on Maternity Leave?

While being fired is less than desirable under any circumstance, it is particularly challenging when you are expecting or after you have a new baby. You do have certain rights to defend, though, so if you think that your employer is wrong for firing you, or that you experienced any pregnancy discrimination, be sure to consult an attorney about your options

Do I Receive Benefits While I'm on Maternity Leave?

If you qualify for FMLA leave, then your company must continue your health insurance benefits while you are on leave. However, the company does have the right request reimbursement of insurance or other benefit premium payments if you choose to not come back to work after your FMLA leave.

Regarding PTO and other accrued benefits, FMLA doesn't require employers apply accruals while you are on FMLA leave. This goes for any seniority calculations as well.

This may include vacation time or sick time accrual or the amount of seniority time if it means you qualify for raises or other improvements based on seniority. It can include participation in the 401(k) plan or stock vesting policies as well.

Most companies that offer fully-paid maternity leave (not through STD policies) also pay to cover your other employment benefits during this period.

What if I Believe My Employer Has Violated Certain Rules or Laws?

They can't give legal advice, but we can tell you that it depends on which rules you believe your company has broken and which laws have been violated.

There are also nonprofits — like Equal Rights Advocates, 9to5.org, and National Partnership for Women & Families — that may give you guidance and more information about your rights.

Consult with an attorney before making any decisions.

If your issue is regarding FMLA leave, you may file a complaint with the Wage and Hour Division of the Department of Labor.

What if I'm Adopting a Child or Taking in a Foster Child?

Some employers offer adoptive parents policies identical or similar to those given to birth parent

One big difference may come with companies that pay for maternity leave through STD policies because adoption will not typically qualify under the definition of those insurance policies.

Under FMLA, you’re allowed to take 12 weeks of unpaid leave. And again, certain states do provide a parental leave policy

When and How Should I Request Leave?

You should request leave as soon as you are ready to tell your boss that you are expecting. Usually, this happens when it becomes visible that you are pregnant.

How Do I Decide When to Start My Leave?

The day you start your leave is up to you. Sometimes people only start their leave on the day they go into labor, while others plan to stop working on their due date if they haven’t gone into labor yet.

Other times, expectant mothers decide to start their leave before their due date and before they go into labor. This helps them have more time to prepare.

You may also be able to use short-term disability payments to take leave if your doctor says you need to stop working early.

Other Ways to Extend Your Leave

You can also try to extend your leave using vacation time, sick leave, and other types of personal days.

Requesting More Time Off

If you need more time off, you should discuss it with human resources to see if you can take an unpaid leave of absence or unpaid disability leave. You may even be able to work from home for a while.

Further stipulations

Some additional things to understand about FMLA include knowing that if you and your spouse both work at the same company, then the FMLA will only cover one of you. This means that you might need to reserve FMLA for the last option for leave. Be sure to give your boss notice when you plan to take FMLA for childbirth.

While the regulations are fairly clear, there is always a possibility that your employer could disagree with your request for leave.

Preparing for Maternity Leave

If you are planning on taking maternity leave, get everything ready at work before you go. Be flexible when things don’t go exactly as planned. In fact, you will want to be flexible even with the day you start your maternity leave just in case you are early or late on delivery. Also, you should be the one making decisions. If you will have a temporary replacement or someone taking over your duties while you’re gone, then train them appropriately. Keep in contact with your boss as well, and don’t be afraid to communicate via email when you can, just to make sure you have as much information as you need to keep things running smoothly at work in your absence.

If you need help with any issues surrounding FMLA pregnancy leave, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio