Planning for maternity leave can feel confusing. The United States is the only high-income country that does not guarantee workers or their families paid leave following the birth or adoption of a child. So what are your rights once your baby arrives? Understanding federal law and the laws of your state can help demystify the process of prepping for your maternity leave.
Federal Family Medical Leave Act (FMLA)
Workers covered by the federal Family Medical Leave Act (FMLA) can take up to 12 weeks per year of unpaid job-protected time off to care for new baby. The FMLA applies to all biological, adoptive, and foster parents, as well as stepparents—not just to birth moms. While on FMLA leave, you have the right to keep your benefits, including health insurance. Only about half of all private sector workers in the U.S. are covered by the FMLA, though. To be eligible, you must 1) work for the government or a company with at least 50 employees within 75 miles of your worksite, 2) have worked for your employer for at least one year, and 3) have worked at least 1,250 hours in the last 12 months before taking leave. If you are in the top 10% of highest-paid workers in your company, different rules apply.
Keep in mind that you may use part of your leave time before giving birth—to take day off per week to go to the doctor, for example— rather than all at once. However, you only get 12 weeks of leave for total per year, so if you take time off before you give birth for your own health needs, you’ll have less time afterward to spend with your baby. For more information, take a look at the Department of Labor’s helpful guide to the FMLA.
Even if you aren’t FMLA-eligible, you may have rights under your state’s laws to take time off after your baby is born. Many states have laws that are similar to the FMLA but more expansive. For example, in Vermont, private employers only need to have 10 employees for their workers to to qualify for job-protected leave. In Oregon, you only need to have worked for your employer for 180 days to be entitled to leave, not the full year that the FMLA requires. To better understand the family leave laws in the state where you work, visit Babygate.
Many states and cities provide protections for pregnant workers in need of temporary adjustments at work, known as “reasonable accommodations.” In some of those places, such as Illinois and New York City, the laws make clear that employers must provide workers with time off to recover from childbirth unless doing so would impose an undue business hardship on the employer. Other state laws allow workers to use their sick time during pregnancy, or explicitly provide for unpaid time off related to pregnancy-related disability and for recovery from childbirth. Click here for more information on state and local laws protecting pregnant workers.
If you live in California, New Jersey, Rhode Island, or New York, you may be entitled to paid time to bond with your baby. New York’s recently-passed law, the most generous in the nation, will become effective in 2018. For more information, check out our Paid Family Leave Laws chart.
Keep in mind that if your employer treats you unfairly because of your pregnancy—for example, by cutting your hours or making you take maternity leave before you’re ready—they make be breaking the law. Your boss could also be violating the federal Pregnancy Discrimination Act or your state’s anti-discrimination laws if he or she treat workers who take time off for childbirth differently from those who take time off for other medical treatments. If you experience unfair treatment in the workplace or if you have questions about the information in this blog post, you can call our free legal clinic at 212-430-5982 (615-915-2417 for our Southern Office) for assistance.
For more info on navigating the workplace while pregnant, see our blog post, “Talking to Your Boss About Your Pregnancy.” Please note that the laws are complex and this post is not intended to provide legal advice. Please consult with a local attorney or call our free legal clinic if you have questions about your rights.