Providing Pregnancy and Parental Leave

Some employers must allow employees to take time off for pregnancy or a new child.

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Not many employers provide paid maternity or paternity leave to the new parents in their workforce. No federal law requires you to offer paid time off to new parents.

Although a handful of states, such as California, give employees paid time off for the period they are physically unable to work due to pregnancy and childbirth, this time off is generally paid out of state temporary disability insurance programs (which are funded by withholdings from employees' paychecks), not out of an employer's own pocket.

Providing unpaid leave, however, is a different story.

Federal and State Requirements

The federal Family and Medical Leave Act (FMLA) requires larger employers to provide up to 12 weeks of unpaid leave per year to workers who need to care for a new child (either by birth or by adoption), to care for a seriously ill family member, or to recover from their own serious health condition, among other things. For more details about who is covered by the law, what leave the law requires, and notice and certification requirements, see Providing Family and Medical Leave.

FMLA leave can be used as pregnancy or parental leave in certain situations. Here are some of the rules that apply:

  • Pregnancy leave. Pregnant employees are entitled to use FMLA leave if complications from pregnancy constitute a serious health condition. As a practical matter, if a woman's doctor determines that a period of leave is medically necessary, she will be able to use FMLA leave for that purpose.
  • Parental leave. New parents may use FMLA leave as parental leave following the birth or adoption of a child, or the placement of a foster child. This leave may be taken any time during the first year after the new child arrives.
  • Intermittent parental leave. Parental leave may be taken intermittently, but only with your permission. For example, new parents may wish to work part-time for a period or take some leave immediately following the birth and some leave later. As long as you agree, you and your employee can work out a flexible leave arrangement under the FMLA.
  • Combining parental leave. If both parents work for you (and are married to each other), you may restrict them to a combined total of 12 weeks of parental leave. (This rule does not apply to an employee who must take time off for her own serious health condition, however. So if your employee had a difficult birth and is unable to work for 12 weeks, you will also have to provide her husband with 12 weeks of parental leave, if requested.)

Some states require you to provide more than 12 weeks of leave, particularly if the leave is for "maternity disability" -- the legal term for the period of time when women are actually unable to work because of pregnancy and childbirth.

Your Policies

Your own employment policies may obligate you to provide paid leave to pregnant employees and new parents. Generally, if you make paid personal or medical leave available to other workers, you must make it available to pregnant employees and new parents. For example, if you provide paid leave to employees who are temporarily disabled (unable to work) for medical reasons, you must make this leave available to employees who are unable to work because of pregnancy.

Similarly, if you provide personal or vacation leave to your employees, you must allow new parents to use this time off as parental leave, as long as they meet the other requirements of your policy (for example, providing adequate notice or scheduling the leave with their supervisors).

For help drafting pregnancy or parental leave policies, including sample policies on CD-ROM, see Nolo's Create Your Own Employee Handbook: A Legal & Practical Guide, by Lisa Guerin & Amy DelPo.

Avoid Discrimination Claims

Federal and state laws prohibit discrimination on the basis of gender, and this includes discrimination because of pregnancy. This means that you may not fire, demote, or take any other negative employment action against a worker because she is pregnant. Here are a few tips that will help you stay within the law when dealing with parental leave issues:

  • Never require an employee to take pregnancy or maternity leave. In times past, an employer could force a pregnant worker to stop working when she reached a certain stage of her pregnancy or was "showing." This is no longer legal. You must allow your pregnant employee to work for as long as she remains able to do her job, even up to the date she gives birth.
  • Treat a pregnant employee who needs time off like other temporarily disabled workers. Unless required by state or federal law, you need not offer special benefits to pregnant workers, but you must treat them as well as you treat other workers who are temporarily unable to do their jobs because of disability or illness.
  • Offer parental leave, not maternity leave. If you offer any time off for a parent to spend with a new child, you must make it available to both fathers and mothers. If you offer a benefit that can be used solely by women -- like maternity leave -- you can be sued for discrimination.

For an all-in-one resource to help you meet your company's legal obligations to the FMLA while helping employees balance work and family needs, get The Essential Guide to Family & Medical Leave, by Lisa Guerin and Deborah England (Nolo).

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