The federal and state government maternity leave laws in the United States are like a box of chocolates.
You never know what you are going to get. You never know whether you qualify, what job protections you may have, and what your rights might be.
There are federal maternity leave acts that apply to people across the United States but exclude certain classes of workers.
In some instances, state maternity leave laws expand eligibility criteria but apply to employees working only in that specific state.
State Maternity and Family Leave Laws
Many state governments choose to enact maternity leave laws to fill the holes in federal regulations. Some states have enacted these additional regulations, while most have not. The four primary gaps are the lack of paid leave, benefits for fathers, protections for small business employees, and rights for part-time workers.
State Paid Leave Programs
Paid maternity leave of absence laws by a state will sometimes fill in the primary gap in the federal FMLA – the lack of income replacement. Bringing a baby into the world is expensive enough without combining that with lost income.
Laws do exist in over twenty-five different states; however, the added rules exclude most workers. They also go by other names such as health insurance continuation, paid family leave, disability pay, unemployment compensation, or paid sick leave.
Paid Family Leave
Paid family leave laws exist in only four states in 2018. A fifth takes effect in 2019. These regulations provide for income replacement during baby bonding time for mom and allow fathers to take paid time off as well.
- New Jersey
- New York
- Rhode Island
- Washington State (2019)
Taking out a personal loan is the primary alternative for new parents working in one of the 45 other states. However, this option presents dangers to couples who do not qualify for legal job protections (see below). Repaying a lender is difficult when mom or dad loses a job due to an extended work absence.
Temporary disability coverage is a frequently misunderstood component of paid maternity leave laws by state. Many parents mistakenly assume that they automatically qualify for income replacement while they are unable to work.
State-mandated temporary disability programs operate in only five regions. The programs provide income security for women while they recover from childbirth. You must purchase private policies in the remaining forty-five if you do not work in one of these five.
- New Jersey
- New York
- Rhode Island
Paid maternity leave laws by state vary the most when one or both parents choose to terminate employment voluntarily. The Federal American Reinvestment and Recovery Act provided incentives for states to modernize their unemployment programs to include “compelling family reasons.” Twenty-two accepted these incentives and expanded eligibility.
Collecting unemployment compensation may now be possible in very limited circumstances after the parental leave ends. Three criteria apply across the country.
- Physically able to work
- Available for duty
- Actively seeking a new job
You may be eligible to collect if either parent terminates employment to care for a sick family member (your seriously ill newborn, or mother experiencing pregnancy complications). Mom can collect if she quits due to her own disability in six states.
A discussion about paid maternity leave laws by a state must begin with a discussion about health insurance benefits continuation – as it applies to the greatest number of people. This is a hidden trap for many new parents.
- 60% of U.S. workers do not qualify for health insurance continuation.
- 40% lose this important benefit after twelve weeks.
FMLA and several supplemental state regulations stipulate that employers continue access to health insurance as if the employee were still working. This means that the employer must continue making the same contribution towards the monthly premium. If the law does not apply to you, or when the protections expire after twelve weeks, you must pay the full premium yourself.
Paid Sick Leave
Paid maternity leave laws also vary slightly be a state when you consider paid sick leave regulations. Sick leave programs are beginning to grow in number. These regulations require employers to compensate employees for a specified number of sick days each year. Job protections are not part of these regulations.
State Legal Job Protections
Job protected parental and medical leave of absence laws also vary by state. The Federal FMLA has limitations. Fourteen states have supplemental regulations that these job protections to small businesses, fathers, part-time employees, and can lengthen the duration.
Several state-based parental and medical leave laws extend rights to small business employees. The Federal FMLA pertains to any organization that employs fifty or more employees working within a seventy-five-mile radius of the worksite. This requirement helps employees working from a headquarter location, but not as well for employees in branch offices, telecommuters, and other remote workers.
The fifty employee cut off eliminates quite a few small businesses and their employees. The state-level regulations provide broader employee size requirements, thereby providing job protections to small businesses.
Some rules set the requirement at fifty employees nationwide without the location criteria in the federal rule, which opens things up for remote workers. Others simply have a lower number of employees as the criteria.
A few state-based laws extend the rights of fathers during a paternity leave of absence from work. The Federal FMLA provides fathers with twelve weeks of unpaid paternity leave for baby bonding, and care of a sick family member.
These state-based regulations allow both mom and dad to extend their job-protected time away from work. The additional length of time varies.
Several state-based parental and medical leave laws extend rights to part-time workers. The Federal FMLA excludes some part-time workers. The act requires an employee to work 1,250 hours per year. This equates to 24 hours per week for 52 weeks.
The additional state-based regulations will sometimes ease barriers for part-time employees by lowering the number of hours worked criteria, or by shortening the window of time. In addition, those who may have suffered a period of unemployment may now qualify. This is helpful for seasonal workers in particular.
- New Jersey
Federal Maternity and Family Leave Laws
Federal government maternity leave laws apply evenly across the U.S.A. The regulations hold every employee and employer to the same standard regardless of location. However, there are qualifying criteria. Not every small business or part-time employee meets the eligibility criteria.
The three primary federal government maternity leave laws are the Family Medical Leave Act (FMLA), the American’s with Disabilities Act (ADA), and the Pregnancy Discrimination Act (ADA).
The Family Medical Leave Act of 1993 (FMLA) is the first federal maternity leave law. The FMLA provides important unpaid job protection for working women experiencing pregnancy complications, premature birth of an infant, or who want to bond with their baby during her maternity leave.
New and adoptive parents are the most frequent users of this important job protection. However, not every employee is eligible under every circumstance. The key issues for pregnancy are broken down into three parts:
- How FMLA works while pregnant?
- How FMLA works with maternity leave?
- What FMLA rules should I know?
FMLA during Pregnancy
The Family Medical Leave Act is the cornerstone maternity leave law in the U.S. The regulation stipulates that a serious medical condition is one that requires continuous treatment by a healthcare provider. One definition of “continuous treatment” includes any period of incapacity due to pregnancy, or for prenatal care.
Prenatal care is a common requirement for perfectly healthy pregnancies. Women routinely visit their OB/GYN to monitor the health of their baby. Often these appointments are hard to get and require a woman to take time off from work to keep these appointments. A woman suffering from severe morning sickness may also qualify for FMLA job protections.
FMLA during pregnancy also allows you to take up to 12 weeks of job-protected leave during any 12-month period to address your own serious medical condition. If a woman needs to stop working early due to pregnancy complications, the time will count towards the total of 12 weeks.
Any FMLA time used prior to delivery eats into the time available to care and bond with your baby. Several state maternity leave laws may extend the total amount of job-protected time away from work. This may happen in one of two ways:
- Extended job-protected time running concurrently – a handful of states provide more than twelve weeks of leave.
- Sequentially running job protections – several states have laws limiting the leave to caring for a sick family member. Women experiencing complications of pregnancy can take FMLA for her own serious health condition, and then take state leave to care for and bond with her newborn.
FMLA during Maternity Leave
FMLA during maternity leave provides important job protection benefits. Covered employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:
- Taking care of your newly born infant
- Placing an adoptive or foster child in your home
- Providing care to a close family member (such as your parent, child, or spouse) with a significant medical problem
Baby Bonding Time
Baby bonding time is covered under FMLA. Both taking care of your newly born infant and placing an adoptive or foster child in your home count as baby bonding time.
FMLA during Paternity Leave
FMLA may also cover men seeking job protection during a paternity leave. Men are subject to the same 12-week limitations as women. Men sometimes need to use paternity leave time to care for his wife experiencing a pregnancy disability. It pays to be careful with this time so as not to exhaust paternity leave baby bonding time.
American’s with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) is the second federal government maternity leave law. Pregnancy is sometimes covered under the ADA. Most expectant women are feeling either too well, or too poor to qualify. A small group in the middle is eligible.
Twenty-five percent of expectant women will experience one or more complications. Those able to continue working are covered by the ADA. The protections end if you need to take a pregnancy leave of absence for bed rest or other serious medical reasons.
The Americans with Disabilities Act does not cover pregnancy disability leave. It applies only while you are actively working. ADA protections end once you take a leave of absence from work.
You must look elsewhere for job protection and income replacement if your doctor orders bed rest or you are unable to work at all.
Complications prior to childbirth may be eligible for a protected status under Americans with Disability Act if you continue actively working.
For example, a woman who suffers from hypertension while expecting may qualify for protected status. It must be shown that her hypertension limits a major life activity, which is often defined as a task that most people are able to perform adequately with very little difficulty.
If a pregnancy-related condition makes it difficult to perform one or more of these activities, then the provisions may apply, and the employer must make compliant accommodations.
Under the Americans with Disabilities Act, a covered employer must make reasonable accommodations for pregnant women meeting eligibility guidelines. A reasonable accommodation is any modification or adjustment to a job or work environment that enables the disabled person to perform essential job functions.
What is most interesting to note is that if you are experiencing a normal and healthy pregnancy the ADA does not apply. You do not meet the criteria. Only women experiencing complications have these protections. Do not ask for any special treatment from your employer unless you qualify.
The Americans with Disabilities Act has its own set of eligibility guidelines. All employers that have 15 or more employees must comply. A person is considered disabled under the act if he or she has:
- An impairment that significantly limits one or more activities of daily living
- A written record establishing the limitations
- Or a reasonable person would recognize the impairment – it is obvious
Pregnancy Discrimination Act (PDA)
The Pregnancy Discrimination Act (PDA) is the final federal maternity leave law. PDA is a workplace law that protects expectant women’s rights while looking for a job, and when actively employed. After returning to the workforce, the ability to express milk is protected under a related statute.
PDA topics are broken down into three main points:
- Federal Definitions
- Maternity Leave
- Health Insurance
Several Pregnancy Discrimination Act definitions are important to know to help you determine if your employer is required to comply, if there is a possible violation, and if you are eligible for damages. Employees with medical conditions that limit their ability to work can fall into several categories: work reassignments, modified schedules, and temporary leaves of absence.
Minimum Number of Employees
The PDA first defines a minimum number of employees for which employers are subject to the federal regulation. Employers with fifteen or more total employees, including federal, state, municipal, union, private workers, and employment agencies must comply.
The PDA outlaws discrimination based upon pregnancy in any area of employment including hiring, performance evaluations, career development, the taking of sick leave, etc.
Statute of Limitations
There is a 180-day statute of limitations to file a notice of violation. Charges made after this period will not be subject to damages. File your claim right away to take advantage of any remedies under the law.
Employers often modify work assignments to accommodate employee’s limitations. Women who are expecting should be treated in the same manner as every other employee. For example, if an employer assigns light duty work to an injured worker, the same must be done for any pregnant employees.
Employers may sometimes arrange flexible working hours for employees with a medical need. Modified work schedules and sick leave policies must be applied equally throughout the workplace. A woman experiencing morning sickness should expect to be treated the same as any other employee with a chronic medical condition.
Employers must now also provide reasonable break time to allow a breastfeeding mother to express milk. This requirement was added to the Fair Labor Standards Act in 2010. This falls under the jurisdiction of the Department of Labor.
The Pregnancy Discrimination Act also requires that any group health insurance plan provided by an employer with more than fifteen employees cover an expectant mother to the same extent as any other covered sickness. This means that pregnancy-related conditions have the same:
- Deductibles – the amount you pay before insurance begins coverage
- Coinsurance – the percentage of maternity-related usual and customary expense you pay
- Premium rates – what the employer asks you to contribute via payroll deduction
The PDA does not require that your health insurance covers any procedures to terminate a baby’s life except when the health of the mother is at risk. Health benefits must be the same for spouses of male and female employees. Single employees must have the same access to coverage as married employees.