Taking Pregnancy Leave and Parental Leave

Learn about your right to pregnancy disability leave and maternity or paternity leave when you have or adopt a baby.

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If you are expecting a child, you probably plan to take at least some time off work, either during pregnancy ("pregnancy leave") or after the baby arrives ("parental leave"). How much time you can take and whether the leave will be paid depends on federal law, the law in your state, and your employer's policies.

Will You Get Paid Leave?

Unless you've saved up some vacation time, your leave could well be unpaid. Many companies don't offer paid parental leave, and no law requires your employer to pay for this time.

A handful of states (including California) provide partial pay to employees who are unable to work because of pregnancy. These programs, generally part of the state's temporary disability insurance fund, are funded by withholdings from employee paychecks, not from employer contributions. And, they don't provide full compensation: In California, for example, the benefit ranges from $50 to more than $900 a week, depending on your usual earnings.  

Your Right to Unpaid Leave

Some federal and state laws give employees a right to take unpaid leave for pregnancy or parenting. Your employer's policies may also give you a right to take time off.

The Family and Medical Leave Act

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), among other things. (For more details about who is covered by the law, what the law requires, and notice and certification requirements, see Taking Family and Medical Leave.)

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

  • Pregnancy leave. You are entitled to use FMLA leave for prenatal care and for complications from pregnancy that constitute a serious health condition (such as severe morning sickness or medically required bed rest). If your doctor determines that a period of leave is medically necessary, you will almost certainly 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 your child arrives.
  • Intermittent parental leave. You may take parental leave intermittently, but only if your employer agrees. For example, you may wish to return to work part time for a while or take some leave immediately following the birth and some leave later. As long as your employer agrees, you can work out a flexible leave arrangement under the FMLA.
  • Combining parental leave. If you and your spouse both work for the same employer, your employer may limit you to a combined total of 12 weeks of parental leave, not 12 weeks each. (This rule does not apply to an employee who must take time off for her own serious health condition, however. So if you had a difficult birth and are unable to work for 12 weeks, your husband will still be entitled to up to 12 weeks of parental leave, if requested.)

State Leave Laws

Some states (see State Short-Term Disability Benefits) require employers to let employees take time off for pregnancy and parenting. Some of these laws are similar to the federal FMLA in that they allow parental and pregnancy leave, but are more generous -- the law may apply to smaller employers, allow employees to take more time off, or cover more employees, for example. 

Some states require employers to provide time off to employees who are unable to work due to pregnancy. State law may provide for a specified amount of time (four months in California) or may simply require employers to allow a woman to take "reasonable" pregnancy disability leave. In either case, however, you are entitled to time off only while you are actually unable to work because of pregnancy and childbirth; these laws don't require parental leave once you are back on your feet. Contact your state labor department to find out whether your state requires employers to give pregnancy or parental leave.

Company Policies

Some employers provide paid parental and pregnancy leave for their employees, and some have policies allowing unpaid leave. Even if your company doesn't provide leave that exactly fits your situation, however, you may still be entitled to take time off. For example, a handful of states require employers to provide the same leave to adoptive parents as to biological parents.

Discrimination laws may also give you a right to take leave if your employer's policies don't. For example, federal and state laws that prohibit pregnancy discrimination require employers to treat pregnant employees just as they treat employees who are temporarily unable to work for other reasons. So, if your company gives paid time off to employees who are unable to work for a short period because of knee surgery or a heart attack, it must allow a pregnant employee who cannot work the same time off.

Similarly, sex discrimination laws prohibit employers from applying different policies to men and women. So, if a company provides "maternity" leave strictly for parenting, male employees are entitled to the same amount of time off.

To learn more about your rights to pregnancy and parental leave, get  Your Rights in the Workplace, by Barbara Kate Repa (Nolo).

by: , J.D.

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