Maternity Leave Policy: Everything You Need to Know
Maternity leave policy is a policy established by an employer to ensure that a female employee who is a soon-to-be or new mother will receive fair treatment.8 min read
2. What Is a Maternity Leave Policy?
3. What Maternity Leave Rights Do I Have?
4. Pregnancy Discrimination
5. FMLA Leave
6. Maternity and Paternity Leave Policies
7. What Is My Company's Maternity Leave Policy?
8. Frequently Asked Questions About Maternity Leave
9. Procedure for Filing Maternity Leave
10. Different Types of Maternity Leave
11. How to Create a Maternity Leave Policy
What Is a Maternity Leave Policy?
Maternity leave policy refers to a policy that obligates an employer to provide protection for a female employee who is close to giving or has just given birth to or adopted a baby.
Maternity leave policy is a policy established by an employer to ensure that a female employee who is a soon-to-be or new mother will receive fair treatment. Maternity leave refers to the period of time when the employee stops working to give birth to or take care of her new baby. This kind of leave is also sometimes called family leave, family medical leave, or pregnancy leave.
While some companies or organizations have an official maternity leave policy in place, others may not. Even if a policy is available, it may not provide paid leave. Also, even if maternity leave is paid, it may not be fully paid, because some employers only offer partially paid leave or a sick leave, short-term disability, or another plan that pays during leave of absence.
What Maternity Leave Rights Do I Have?
Knowing your maternity leave rights is especially important if you are a female employee in the United States. Unlike women in most other developed countries who are guaranteed maternity leave payments, you cannot be sure that you will receive maternity leave benefits from the U.S. government.
Most American women are not paid while they are on maternity leave. Instead, they have to depend on a federal parental leave law known as the Family and Medical Leave Act (FMLA) to safeguard their jobs for up to 12 weeks following childbirth or adoption. This means that they are entitled to return to work without penalty in position or pay after their maternity leave. Moreover, according to the Fair Labor Standards Act imposed by the U.S. Department of Labor's Wage and Hour Division, nursing mothers are allowed to express milk or "pump" in the workplace.
Besides determining your eligibility for FMLA, you should also check if you belong to one of the 25 states that supplement FMLA protection either by extending the duration of maternity leave to up to 16 weeks, lowering minimum employer size to less than 50, or requiring pay for maternity leave from private companies with a cap limit.
If you are an employer, you have to make sure that you:
- Have legally sound policies and practices in place to prevent potential pregnancy complications
- Know the federal anti-discrimination and leave laws governing what you should or should not do or say
- Know your state statute, which can potentially offer better leave benefits for a pregnant woman or new parents
- Adhere to the FMLA and the Pregnancy Discrimination Act (PDA)
- Have a good understanding of the Americans with Disability Act (ADA), which may be relevant in dealing with pregnancy complications that limit major life activity
The PDA does not allow discrimination against employees or applicants for reasons related to pregnancy, birth-giving, and related medical conditions.
Employers who have 15 or more employees and are subjected to Title VII of the Civil Rights Act of 1964 must act in accordance with the PDA. According to the law, they:
- Cannot deny women jobs or promotions due to pregnancy or abortion
- Cannot fire pregnant employees or force them to take leave as long as they are still able to perform their daily duties
- Must treat pregnant workers the same as other employees based on their ability or inability to perform work
- Must offer the same accommodations for pregnant employees as they do for other employees who are unable to carry out their regular duties
- Must provide the same work arrangements for pregnant employees as they do for other employees (for example, if an employee with a bad back who is unable to lift heavy items is given other tasks, a pregnant employee should also be entitled to such arrangements)
- Must be careful not to apply light-duty programs haphazardly as a means of deducting their employees' compensation costs, because such inconsistency may lead to discrimination lawsuits by employees who need light-duty positions more, such as pregnant employees
- Must provide pregnant employees with sick leave and disability benefits under the same conditions that apply to those granted to other employees with temporary disability
- Must reinstate pregnant women returning from maternity leave under the same terms as employees who return from disability leave
- Are permitted to impose the same requirements on pregnant employees as those imposed on other employees, such as requiring a medical note before approving sick leave and benefits
- Must allow single women to obtain maternity benefits
- Must offer the same coverage for conditions related to pregnancy as they do for other disabilities or illnesses
- Can require pregnant employees to use their vacation benefits before they receive sick leave or disability pay, only if the same requirement applies to employees who are absent due to other disabilities or illnesses
- Can extend clauses that exclude insurance coverage of pre-existing medical conditions to pregnant employees if the same restrictions apply to other conditions
- Cannot force employees who have a single-coverage insurance policy to buy a family insurance policy to obtain coverage for pregnancy, but should allow them to change plans after giving birth in order to get coverage for their newborns
- Refrain from discriminating against pregnant employees without being able to prove that their actions are unrelated to their pregnancy
Employers must consider the right of pregnant employees to take leave under the provisions of the FMLA. To qualify for FMLA leave, pregnant women must be employed by the same employer continuously or not continuously for a minimum of 12 months or 1,250 hours within the 12 months immediately before the FMLA leave. Eligible employees are entitled to up to 12 weeks of unpaid leave with job protection for:
- The birth, adoption, or care of a child
- Provision of care for child, spouse, or parent with a severe medical condition
- Recovery from severe health conditions
Organizations with at least 50 employees working in a 75-mile radius of their work sites are required to conform to the FMLA. They also have to ensure that new parents are permitted to take FMLA leave at any desired time within the first 12 months following the arrival of a new child. If the parents work in the same company, they are entitled to a combined 12 weeks of leave following the birth or adoption of a child.
Maternity and Paternity Leave Policies
Apart from the coverage provided by short-term disability policies, few employers provide paid maternity leave. The 2007 Benefits Survey conducted by the Society for HR Management showed that 81 percent of organizations offer short-term disability benefits. However, only 18 percent said that they have a separate policy for paid maternity leave, and only 17 percent provide paid paternity leave.
What Is My Company's Maternity Leave Policy?
Only 16 percent of private companies have funded paid maternity or family leave plans. Typically, these maternity leave policies are applied equally to all female employees in an organization, with the exception of some contract or unionized workers.
Employees who are dissatisfied with the maternity leave policy offered by their employers can try negotiating for more leave, even if their requests are not part of their companies' official policies. Before making a case, they should do research in advance, so that they can show their employers what other companies are offering. Some companies help returning mothers by providing flexible working hours or permitting them to work from home.
Frequently Asked Questions About Maternity Leave
Q: Can I take paid and unpaid maternity leave at the same time?
A: If you are receiving paid maternity leave, the paid leave and FMLA can run simultaneously. This means that the time taken off for paid maternity leave is included in your 12-week protection under the FMLA.
Q: Are payments for maternity or short-term disability leave taxable?
A: You are required to pay taxes as you do on your regular salary. Likewise, if you are getting disability benefits, you also have to pay taxes on it if your employer has been paying insurance premiums. If you have been paying the disability insurance yourself, then the benefits are tax-free.
Q: When do I have to return to work?
A: It depends on your personal preferences and finances, as well as the leave policies and laws you are subject to. If you intend to extend your maternity leave, you can save up your personal, sick days, vacation, and paid time off (PTO) allowances before having your baby.
Q: What happens if I decide not to return to work?
A: Make sure you check with the HR department of your company before making this decision, as you may have to return a portion of your benefits.
Q: What if I am fired while I am pregnant or on maternity leave?
A: If you think you have been a victim of pregnancy discrimination, consult an attorney to know your options.
Q: Do I receive benefits while I am on maternity leave?
A: If you are eligible for FMLA leave, you will receive benefits while you are on maternity leave because your company is required to keep you on its health insurance plan. However, if you do not return after your FMLA leave, your company is legally allowed to ask for health insurance premium reimbursement.
Q: What if I am taking in an adopted or foster child?
A: Some employers have adoptive parent's policies that are similar to those offered to birth parents. However, the situation may be different in companies that use short-term disability policies to pay for maternity leave, because adoption usually does not qualify under the definition of such insurance policies.
Q: When and how should I ask for leave?
A: According to the FMLA, you must submit your maternity leave request at least 30 days in advance.
Q: How should I decide when to begin my leave?
A: You can start your maternity leave at any time during your pregnancy or after childbirth within 12 months of the birth of your child. It is important to take into account your finances, physical condition, and the stress that comes with the job when you are deciding when to start your leave. If you need to take maternity leave earlier because of medical complications or advice from your doctor, you will typically be entitled to receive short-term disability payments beginning at that point.
Procedure for Filing Maternity Leave
- Give formal written notice to the HR department or immediate supervisor at least a specified amount of time before the expected time of childbirth.
- Complete and submit the required forms, including the expected date of childbirth and the desired date for starting maternity leave.
- Make arrangements to keep in touch with your supervisor.
- Employees will be officially notified of their eligibility upon approval.
- Official documents will include the approved duration of maternity leave with confirmed start and end dates, and clearly stated benefits.
- The start and end dates of maternity leave may be modified through an official document in the event of unexpected early labor.
Different Types of Maternity Leave
- Intermittent leave – covers single events, including unexpected small emergencies or medical appointments
- Block-of-time leave – extended leave granted after an employee or employee's spouse has given birth to a child or experienced health complications before childbirth
- Employer-paid leave – a costly option where an employer keeps paying an employee's salary while he or she is on leave
- Vacation or sick time while on maternity leave – another expensive option offered by some employers
How to Create a Maternity Leave Policy
- Employers should provide a clear explanation of the notices and forms that maternity leave applicants have to submit in order to be granted leave.
- Explain the benefits that employees will be entitled to while they are on leave.
- Highlight to the employees the importance of upholding their portion of the agreement.
If you need advice or assistance regarding your company's maternity leave policy, 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, Menlo Ventures, and Airbnb.