Maternity Leave Laws
Maternity leave is legally guaranteed for women whose employers qualify under the Family and Medical Leave Act (FMLA). Not all companies are required to follow FMLA rules, though. It's important to understand what protection you have and what your specific employer's obligation to employees on leave is.
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The Facts
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The Family and Medical Leave Act (FMLA) passed by Congress in 1993 was designed to protect the jobs of pregnant and new mothers, giving them job security and time off for labor and early postpartum.
Essentially, FMLA requires that companies in its oversight give 12 weeks of unpaid time off in any 12-month period for "the birth and care of a newborn child." (The Act also provides the same time off for employees who have a medical condition that requires a leave of absence, who are adopting or who must care for a sick family member.) During that time, the employee's job---and any benefits she has through her job---is protected, and when the employee returns from leave, she returns to the same job or its equivalent in terms of salary and responsibilities.
The federal guidelines of FMLA apply across the United States, but specific maternity leave legislation varies from state to state. Be sure to check your local state's legislation for your specific rights---you may have state protection even if you aren't protected by federal law.
Requirements
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Not every company is required to follow FMLA guidelines.
According to federal law, only companies that employ 50 or more people for at least 20 weeks of the year are required to follow FMLA guidelines. State, local and federal agencies and local education agencies are also required to follow FMLA guidelines, regardless of their size. This means that companies who have fewer than 50 people working for them for most of the year do not have to follow the FMLA guidelines, though some may choose to do so.
Employees of FMLA-qualified employers also must meet certain criteria in order to be eligible for the benefits of FMLA. According to the law, an employee must have worked for her company for at least 12 months in order to be protected by FMLA. Full-time employees are protected for up to 60 days of leave under FMLA; part-time employees, who work 20 hours a week or less for their company, may be entitled to just 30 days.
If you haven't worked for your current employer for a year, your employer isn't required to give you FMLA leave, though some companies choose to do so.
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Misconceptions
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Many expecting moms make the mistake of believing that FMLA rules guarantee paid time off for new mothers, but FMLA legislation only requires unpaid time off. Some employers may offer paid time off or may let employees combine earned time off with their FMLA time, but they are not required to do so.
Some women also believe that they must use up their vacation, sick and personal time at work before they can use FMLA time, but that is a misconception. FMLA protection prevents employers from making employees use earned vacation during their time off under FMLA.
Keep in mind that you're entitled to a total of 12 weeks off under FMLA, so if you have to take time off for complications or bed rest during pregnancy, that time might affect your total time off after birth.
Exceptions
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FMLA protects your job during maternity leave, which means that in most cases you cannot be fired while on maternity leave. There are, however, a few exceptions that are important to keep in mind.
Your employer does not have to save your job---or continue your medical or other benefits---if you tell him that you do not plan to return to work after maternity leave. Your job is also not protected if your company undergoes layoffs while you are on leave, and your position is one of those eliminated.
Your employer also does not have to hold your job open for you for longer than the mandated 12 weeks, which means that if you are unable to return to work after the prescribed 12-week period, your employer can terminate you.
Legal Help
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If your employer refuses to allow you to take your FMLA leave, you have two years from the time of denial to file a complaint against the company. Complaints should be filed to the Department of Labor or the nearest office of the Wage and Hour Division of the Employment Standards Administration.
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