The Family and Medical Leave Act Provides Unpaid Parental Leave to New Parents throughout the United States

Of the 41 developed countries in the world, the United States is the only one that does not offer paid parental leave. If you have a baby, you must meet certain criteria to even be entitled to unpaid parental leave under federal laws. What are your options?

You need time to heal and time to bond with your child. How do you heal and bond with your newborn without losing a job to go back to? How do you afford to live without being paid for your time off?

Some laws protect you, as a pregnant woman from being fired. While many federal laws end with protecting your job, state laws may help you get paid while out on leave. It may be a portion of your regular pay, but it is more than nothing.

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What Federal Laws Protect Your Job While You Take Maternity Leave?

If you are planning on taking leave a leave of absence from work due to pregnancy, you may find that your options are limited. Unless your company offers some type of maternity leave, you will have to depend on the federal and local laws to help secure your job.

The Pregnancy Discrimination Act of 1978 (PDA) makes it illegal for a company with 15 or more employees to make any employment decisions based on your pregnancy. Therefore, as a pregnant woman, your boss cannot fire you because you are pregnant. They must also make accommodations for you, which would include giving you time off for childbirth and the healing process.

Yet, the PDA does not offer nearly enough accommodations to allow you to bond with your new baby and heal from giving birth. Many women call the first three months of the baby’s life the “fourth trimester.” The fourth trimester means that your newborn is still extremely dependent on you. Your baby needs you to be at his or her beck and call as much as possible as he or she begins to navigate this great big world.

The Family and Medical Leave Act (FMLA) can help fill in the gaps to provide this necessary time off. If you work for a company with 50 or more employees within a 75-mile radius of your location, your company may need to provide you up to 12 weeks unpaid time off within a 12-month period for your pregnancy and taking care of your new baby.

To take FMLA, you must also meet the following criteria:

1. You must work for the company for at least 12 months before your leave starts

2. You must work at least 1,250 hours or 156 days within a 12-month period before you leave starts

What is FMLA Parenting Leave?

FMLA parenting leave is unpaid parental leave available to both moms and dads. This is part of the 12 weeks of leave available to help family members with severe medical issues. However, the parental leave allows you to bond with your newborn, adopted, or foster child immediately after you bring them home.

Using FMLA for parenting leave will count against your total FMLA time available. In other words, a parent who uses 6 weeks of FMLA parenting leave time will still have another 6 weeks of FMLA time to use throughout the 12-month period.

Does Your State Offer Pregnancy Disability Leave or Paid Maternity Leave?

While the federal laws may only protect your job status, your state laws may offer more options for paid maternity leave. These types of laws protect your job status as well as provide some pay while on maternity leave.

New York offers the New York State Paid Family Leave (NYSPFL) program. Under this program, mothers and fathers have the right to take up to 10 weeks of paid time off from their jobs to bond with their new baby. This program can only be used after childbirth. Employees taking NYSPFL can get up to 60% of their salary with a maximum weekly payout of $840.70.

New Jersey offers Family Leave Insurance (FLI) and temporary disability benefits to mothers looking for maternity leave. The temporary disability insurance will cover 6 weeks for natural childbirth and 8 weeks for a c-section. Mom will be paid up to $667 a week while using this time to prepare for baby before childbirth and heal and bond with the baby after.

New Jersey employees also pay into the New Jersey Family Leave Insurance program through their paychecks. This payment allows both mom and dad to take 6 to 8 weeks of paid time off from work to bond with the baby, no matter how big the company may be.

California offers Paid Family Leave (PFL) for parents giving birth, adopting, or fostering a new child into their families. Parents with new children can take up to 6 weeks off and receive 60% to 70% of their pay. While the California law does not protect your job, you may be able to apply for FMLA or use the Pregnancy Discrimination Act to protect your job while bonding with your baby.

California also has a Pregnancy Disability law which requires employers to give pregnant women up to 4 months off for childbirth and related conditions. This time off is not paid and it does not need to extend to the bonding period with the baby.

What Are the Temporary Disability Benefits Laws Regarding Pregnancy and Maternity Leave?

Many states will either allow short-term disability to be used to supplement lost income or follow the guidelines set forth through the FMLA to provide job security for new parents.

Pennsylvania allows pregnant women to use short term disability after the baby is born to heal and bond with the newborn. The coverage is only available after childbirth, not before.

Florida allows pregnant women to take six weeks paid time off after a vaginal delivery and 8 weeks after a c-section through temporary disability benefits. As with Pennsylvania, the law does not allow for time off to be taken before delivery.

New Jersey and California allow pregnant women to use short term disability insurance to pay a pregnant woman for up to 4 weeks off before the baby is born and an additional 6 weeks for vaginal delivery and 8 weeks for a c-section after the baby is born.

How Long Is the Average Maternity Leave?

Most laws, such as the FMLA, provide a total of 12 weeks for maternity leave. This coincides with the idea that newborns need their mothers by their sides for the first 3 months as they adjust to the world. Therefore, the average maternity leave is 12 weeks.

Some states allow you to take a few weeks of temporary disability coverage before the baby comes and then offer up to 8 weeks of coverage after the baby is born. Others do not allow any coverage before the baby is born and all the leave time can be used after childbirth.

Do Fathers Have Options for Paternity Leave?

Fathers do not have the option to take any paid paternity leave when a baby is born. Disability only applies to the mother. However, the FMLA allows fathers to take time off of work to bond with his child. If he wishes to get paid for the time off, he can use accrued paid time off, such as vacation time.

The FMLA will allow a father to take up to 12 weeks off of work to bond with his newborn. Many times, fathers take 4 to 8 weeks off of work, leaving an additional 4 to 8 weeks for another emergency throughout the year.

What Other Options Are Available for Paid Maternity Leave?

You may have one more option available to receive money while out of work on maternity leave. Many supplemental insurance companies can offer a short-term disability policy that covers lost wages when you are using a disability. If you are using temporary disability in your state to supplement your lost income, you may be able to continue the payments through a short-term disability plan.

Of course, you can use all of your vacation time and sick time accrued through your employer to pay you for part of your time out of the office bonding with your baby.

Beyond taking matters into your own hands and using your savings, paid time off, or disability insurance policies, you are only guaranteed unpaid maternity leave if you meet the criteria mandated by law.

What Are Your Rights to Return to Work?

Under the FMLA and most state laws, you have the right to return to the same position or a comparable position you were in when you took leave. Your pay must stay the same and your hours cannot be docked.

You also have the right to maintain your health insurance, although you are responsible for the full premium as negotiated between your insurance company and your employer.

In addition, under the PDA, you have the right to have a quiet area and time to pump as needed once you return to work.

If your employer does not inform you of your rights under federal or state laws, denies your request to take the leave even if you qualify, or does not maintain your rights to work and insurance when you return, you may have the right to bring a claim against them in court. To learn more about your rights under FMLA and PDA, contact the experienced pregnancy discrimination attorneys at the Derek Smith Law Group at (800) 807-2209 today for your free consultation.

About Derek Smith

Attorney Derek T. Smith is an experienced sexual harassment & discrimination law litigator who has particular experience in the areas of workplace discrimination, sexual harassment, wrongful termination, civil rights litigation, employment law and civil litigation.

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