By Labor and Employment Attorney Jennifer Lankford
Welcoming a new member to your family is an exciting time! Unfortunately, I see all too often how excitement gives way to anxiety as moms and dads to be begin to worry about returning to work after baby. Once the daycare arrangements are made and a copy of “What to Expect When You’re Expecting” lands soundly on the nightstand, the next call is to me – “What maternity leave am I entitled to?
When do I have to go back to work after my wife has our child? Will I get paid for my time away? Do I have to use my vacation time?” These are all important questions. Whether a female or male or parents by birth or adoption – you, as an employee, have certain rights. Below, I tackle some of the most common questions on maternity/paternity leave posed to me by moms and dads to be.
What maternity/paternity leave am I entitled to?
Well, unless you are a mid-level for Netflix (one year leave!) – the types of maternity/paternity leave an employer must offer depends on the size of the business and the laws of the particular state. As it pertains to federal law, employers with 50 or more employees must afford their employees with medical leave as guaranteed by the Family and Medical Leave Act (“FMLA”). Under the FMLA, an eligible employee is entitled to up to 12 weeks of job-protected unpaid leave during a 12 month period.
In addition to the protections offered by the FMLA, the state where you practice may have a more generous maternity/paternity leave law in place. For example, Tennessee has in place the Tennessee Maternity Leave Act, under which any employee working for a business with 100 or more employees is eligible for up to four months of job protected leave for childbirth, pregnancy, or adoption. Be sure to identify whether your state has any laws in place governing maternity/paternity leave.
What if I work for an employer with less than 50 employees and there is no state law on maternity/paternity leave that applies to me?
If not covered by the FMLA or another state or federal protection, it is in the employer’s discretion to set maternity/paternity leave policies. Of course, even without leave guarantees, you may be entitled to certain other protections as a new parent. For instance, Title VII of the Civil Rights Act, which applies to employers with 15 or more employees, requires employers to treat employees affected by pregnancy the same as employees with a temporary disability for all leave. Similarly, under the Pregnancy Discrimination Act (“PDA”), which also kicks in at the 15 employee threshold, an employer cannot discriminate against an employee because she is pregnant. The PDA also requires that the employer hold the individual’s job open for the duration of her maternity leave or offer a replacement in the event the position is no long a viable option.
For businesses with less than 15 employees who fail outside of the FMLA, PDA, and Title VII – it is up to the employer to decide on and implement their own maternity/paternity leave policy. Generally, employers appreciate that maternity/paternity leave is an expected benefit for employees and, even if not covered by law, will provide the physician recommended 6 weeks of leave, typically without pay.
About the FMLA – how do I know if I am “eligible”? Unpaid, really? What if I took leave earlier this year?
You are an employee “eligible” for medical leave under the FMLA if the following conditions are met:
- you have been employed with the business for at least 12 months (it doesn’t have to be consecutive)
- you worked at least 1250 hours in the preceding 12-months for the employer; and
- you have a “qualifying reason” for the leave, which in this case is the “birth of a child, or to care for a newborn child.”
That is right – unpaid. The United States is the only industrialized country without paid maternity leave. Fairness aside, unpaid leave is all you are entitled to under the FMLA. However, some of this leave may be paid if you use accrued paid sick or paid vacation time at the same time as your FMLA leave. In fact, many employers have policies that require you to use paid leave at the same time you are exercising your FMLA leave. If this is the case, then you will receive payment in accordance with company policy for the portion of your leave that qualifies as accrued paid time off. If you used this paid leave earlier in the year, it will not affect whether you are entitled to FMLA leave – just keep in mind that no portion of your leave will be paid.
If the leave you took earlier in the year was FMLA leave, you will not be eligible for additional leave under the FMLA. You only get 12 weeks of FMLA leave in a 12 month period. In other words, your employer is under no obligation to give you an additional 12 weeks of leave or hold your job position until your return. Of course, pregnancy cannot be a factor in the denial. In other words, your employer must uniformly apply a policy denying leave in all situations where FMLA leave is exhausted. An employer cannot only deny additional FMLA leave for employees seeking maternity/paternity absence.
Speaking of holding my job position, my employer has to, right?
Yes, the FMLA entitles employees to “Job-protected” leave. Specifically, you must be returned to the same job position or a position with equivalent status, pay, benefits, and other similar employment terms.
Maternity/paternity leave is full of nuances. In addition to my well-wishes, I offer the following final reminders – don’t forget to provide the appropriate notice of leave to your employer. The FMLA has certain notification requirements when it comes to requesting leave. Similarly, state laws on leave typically require employees to provide a certain amount of notice to an employer. Also, do not underestimate the difficulty of returning to work if you are a breast-feeding mothers. Your workdays will inevitably be filled with excusing yourself to pump breast milk. You have certain rights pertaining to this necessary exercise. Coming soon, an article specifically addressing a new mother’s rights as it pertains to daily lactation breaks while nursing.
In the meantime, if you have additional questions on your rights to maternity and paternity leave under state and federal law, please do not hesitate to contact me.
Jennifer Lankford is an associate attorney at Thompson Burton and focuses her practice on labor and employment law. She has vast experience helping businesses and individuals with a variety of employment issues at the state and federal level. Jennifer lives in Nashville, TN with her husband, Brent, and their miniature schnauzer, Bo.
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