Maternity Leave

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Maternity leave is not directly covered by federal law. Women who work for certain employers covered by the Family and Medical Leave Act (FMLA) may be entitled to unpaid leave, but otherwise, women may need to turn to state laws to receive any guaranteed or paid time off during pregancy or after childbirth. In some cases, women are not guaranteed or paid for any time off at all.

Federal Laws on Maternity Leave

There are two federal laws that protect the rights of new mothers. The first is the Pregnancy Discrimination Act (PDA). This act mandates that pregnant women be treated the same as any other individual and makes it illegal to discriminate against a woman in hiring, firing, terms or conditions of employment simply because she is pregnant. According to this act, if an employer offers paid sick days or disability to employees, the employer must provide this same leave for pregnancy-related disabilities or illnesses. The PDA does not, however, provide a woman the right to maternity leave or sick-time to care for a newborn child.

The Family and Medical Leave Act (FMLA) does provide a new mother with up to 12 weeks of parental leave. Both new mothers and new fathers are allowed to take 12 weeks off for the birth or adoption of a child (although if the parents work for the same company, they may take only a combined total of 12 weeks off). The FMLA does not mandate that the leave be paid leave; it simply provides job protection and guarantees that a worker will not lose her job or benefits as a result of taking time off to stay at home with a child.

FMLA benefits are not available to all workers; however. The employer must be a federal, state or local government employer or must have at least 50 or more employees working within 75 miles of the location where the individual seeking time off works. The individual seeking time off must also have worked for the employer for at least a year and must have worked 1,250 or more hours over the course of that year.

In some states, employers may be permitted to count paid time off, including sick days and vacation days, towards the twelve weeks required by the FMLA. In other states, however, employers must allow for the twelve weeks in addition to any paid leave permitted.

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State Specific Laws on Maternity Leave

Although the right to maternity leave is relatively limited on the federal level, some states provide broader protection for new mothers. This may come in the form of family leave benefits, short-term disability benefits, at-home infant care programs, or state laws expanding the protections provided by the FMLA.

In the state of California, for example, new parents can take up to four weeks of partially paid time off before the delivery date under the State Disability Insurance (SDI) and up to six weeks of paid family leave (PFL) to bond with a newborn and under the California Family Rights Act (CFRA) can take up to 12 weeks of job protected parental leave (paid or unpaid) after the birth of a child. Effective 2018, the California Parent Leave Act (PLA) provides new parents with up to 12 weeks of protected leave for bonding with a new child; the PLA is not a paid leave. 

Hawaii, New Jersey, New York and Rhode Island also have state short-term disability benefits programs or temporary disability programs that provide paid time off for pregnancy-related disabilities and for a limited amount of time after giving birth. In New York, for example, a woman can receive disability benefits for up to twelve weeks after a normal vaginal delivery and an additional two weeks after a cesarean. A woman collecting disability after a pregnancy may be entitled to half of her weekly wages, up to a maximum weekly payment of the lesser  $170 per week. Employees must work for at least four consecutive weeks to become covered by state disability benefits in New York. Effective January 2018, NY’s Paid Family Leave Act (PLA) provides job-protected, paid time-off, for parents to bond with a new born.  

Minnesota and New Mexico offer a different solution to some new mothers. These states provide at-home infant care programs that offer wage replacement to lower-income working parents so that they may remain at home to care for newborns and adopted children. In Montana, for instance, Montana Code section 52-2-710 sets forth requirements for participating in the at-home infant care program. Families with an income below 150 percent of the federal poverty level who are not collecting benefits under various other public assistance programs may qualify for the program provided they meet minimum work requirements.

Finally, several states extend the protections provided by the FMLA, allowing workers to take off longer than the twelve weeks provided by the FMLA without risk of losing their jobs or suffering adverse employment actions. States providing broader protection and more time off than the FMLA include California, Connecticut, Louisiana, New Jersey, Oregon, Rhode Island, Tennessee and Washington. The District of Columbia also provides longer than the 12-weeks provided by the FMLA. Again, while these states extend the protections and provide longer periods of time, this does not mean that the time is paid time off.

Learning About Maternity Leave

Because the laws related to maternity leave do differ on a state-by-state basis, any expectant mother is advised to consider speaking with an experienced attorney in her local area to learn more about state-specific benefits available to mothers. Those who experience discrimination as a result of taking state or federally guaranteed leave or who do not receive benefits expected should also consult with an attorney to protect their legal right to pregnancy and maternity benefits. 

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