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Maternity Leave Laws: What Employers Need to Know

Your employees are dedicated to their work but it isn’t their only priority. At some point, a member of your team will become pregnant and require some time off after (and perhaps before) they’ve given birth. While a baby’s birth is a joyous moment for all involved, the confusing nature of maternity leave laws can provide a logistical problem for employers managing the employees’ time off.

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Maternity Leave in the US

By and large, new mothers have been given short-shrift by the United States government: of 41 nations, the US ranks last in terms of paid leave for new parents, with zero weeks. (Congratulations — or Tere ja palju õnne — to Estonia, which came out on top and provides 86 — eighty-six! — weeks of paid leave).

At a federal level, maternity leave laws in the United States are wrapped up in the FMLA (Family and Medical Leave Act). Enacted into law in 1993, this law provides employees with up to twelve weeks of unpaid leave following the birth of a baby (as well as for some medical conditions). However, around 40% of working women of childbearing age are not covered by the act.

The limitations of the FMLA have pushed many states to go beyond what is legally mandated by the federal government. A handful provide paid leave, while others have extended FMLA requirements to prove more employees with unpaid leave. Under the FMLA, only companies with fifty or more employees must provide unpaid maternity leave, and even then, the employee must have worked for the company for at least 1,250 hours during the twelve months preceding the start of the maternity leave. Many states have reduced these thresholds.

Federal and state laws establish the minimum that an employer must provide for their employees, but companies are free to go beyond them. Indeed, there’s a lot of value in developing a generous maternity leave policy, which can help attract and retain top talent.

What is maternity leave? 

Maternity leave refers to the period of employee absence when a new mother stops working because she is about to give birth, has just given birth, or has adopted a baby. Mothers can use this time to bond with the child and recover from pregnancy and childbirth.

Maternity leave laws: What managers need to know 

Is maternity leave required by law? The answer is: “yes, but.” Under the FMLA, all companies with 50 or more employees must provide up to twelve weeks of unpaid leave to new mothers, providing they have worked for the company for at least 1,250 hours during the twelve months before the beginning of the maternity leave. The employee can take this leave at any point within a twelve-month period, either all at once or broken up into smaller allotments.

The FMLA also protects the employee’s job. When they return to work, they should be reinstated in the same job (or job of equivalent standing) with the same salary and benefits as before they left.

That is the maternity leave required by law at a federal level. Slightly less than half the states have gone beyond the FMLA requirements, to varying degrees. In Iowa, for example, all companies with 4+ employees must provide up to eight weeks of unpaid leave; in Maine, companies with 15+ employees must offer up to 10 weeks of unpaid leave. Employers should look up the maternity leave laws by state to ensure they’re fully compliant.

Nine states (California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington) and the District of Columbia have paid maternity leave programs. Of these, the programs in California, Massachusetts, New Jersey, New York, Rhode Island, Washington, and the District of Columbia are active.

The Colorado program gets underway on January 1, 2024; Connecticut between January 1 – February 1, 2022; and Oregon on January 1, 2023.

Who pays maternity leave?

Except in the states with their own paid maternity leave programs, the answer to this question is: no-one, since there is nothing to pay. Or, to put it in slightly more accurate terms, baby’s family absorbs the cost of leave.

In the states that do have paid maternity leave, payments come from a state-operated insurance fund that employers and/or employees contribute towards.

How long is maternity leave in the US?

As described above, the law dictates that maternity leave must be made available to employees for up to 12 weeks, provided they’re covered by the FMLA.

But how many weeks is maternity leave in practice? Not every new parent uses the full twelve weeks, even if they’re eligible. The average maternity leave USA is around 10 weeks; approximately 25% of new parents take nine weeks or more; 50% take at least five weeks; 16% take one to four weeks off. The remaining percentage take no time off at all. New mothers often do not use all available time, not because of their career-focused mindset, but for financial reasons.

Companies are increasingly filling the gaps created by the FMLA by creating their own maternity leave policies. Between 2015 and today, the percentage of employers with their own paid maternity leave policy jumped by 15% and currently stands at 40%. Private companies create their own policies deciding at what rate they will pay maternity, how long it lasts, and whether it applies to both parents or only the mother.

In the United States, Netflix is considered the gold standard for maternity leave. They provide unlimited paid time off for mothers and fathers. The Bill and Melinda Gates Foundation offers up to twelve months of paid leave.

How long is maternity leave in California? 

Maternity leave laws in California are the most comprehensive in the United States. If an employee qualifies for both the California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL), they can take up to seven consecutive months of pregnancy-related leave.

The CFRA is based on the FMLA but is much broader in scope. The FMLA applies to companies with fifty or more employees: under the CFRA, companies with 5+ employees must make 12 weeks of unpaid leave available to new mothers and fathers who have worked for 12 months and 1,250 hours.

Historically, the CFRA and FMLA have been synchronized — the CFRA was essentially there to cover employees not eligible for FMLA. Employees that qualified for both CFRA and FMLA took the leave concurrently. But that all changed with the passing of SB 1383, which came into effect on January 1, 2021. An employee that takes twelve weeks of leave under CFRA may be eligible to take twelve weeks of leave under FMLA, provided the qualifying reason is not the same.

Pregnancy Disability Leave is for employees who are unable to work due to their pregnancy. Employees can use this leave before, during, and after childbirth for up to four months. New mothers can use this leave all at once or on an as-needed basis. This leave covers any pregnancy-related reason that prevents the employee from performing at least one of their essential duties at work. This can include morning sickness, postpartum depression, and post-childbirth rest and recovery. There is no minimum amount of time the employee must have worked for the company to qualify for PDL.

Creating your own maternity leave policy

Although the maternity leave laws in the US are not robust, 96% of Americans think mothers should be able to take paid time off work following the birth of a child. A generous maternity leave policy can help an employer attract and maintain a skilled workforce.

To ensure that you’re looking after your employees and your business, create your own maternity leave policy. You can do so by thinking about the following considerations:

  • Will your offer paid maternity leave?
  • How long will maternity leave last?
  • How will you measure maternity leave? Will it apply to all employees, regardless of the length of time they have worked for the company?
  • Is your policy compliant with federal and state laws?
  • Will it apply to both parents?
  • How will you manage and organize employee absence? Time off management software like Factorial can streamline the maternity leave request process and give you a clear view of when the employee will leave and return to the office.

The United States still has a long way to go regarding maternity leave laws. By creating your own maternity leave policy, you can create a family-friendly workplace that attracts and retains the best employees while also helping to elevate the standards of what new parents can expect from the workplace.

Leave of Absence Types

Written by Robert Shillcock.

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