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Maternity and Paternity Leave 101

Written by Jamie Lober

Working parents are often faced with the dilemma of what to do about child and self-care after the birth or adoption of a new baby.  Do not wait until last minute to make a decision.  When you learn the facts and feel prepared, you will find that parenting becomes much easier.  

You are probably familiar with the Family and Medical Leave Act.  This states that an employer with 50 or more employees within 75 miles must give employees a total of 12 work weeks of unpaid leave during any 12-month period due to childbirth, placement of a child with the employee for adoption or foster care or self-care.  To qualify, you must have worked for the employer for at least 1 year and have worked 1,250 hours within the past 12 months.  “For women who either do not meet the length-of-service requirement or who work for employers with fewer than 50 employees, there is no ‘right’ to maternity leave under federal law,” said Jackie Ford, labor and employment attorney and partner in the Houston office of Vorys, Sater, Seymour and Pease, L.L.P. who represents employers.  

The provisions of FMLA apply to both moms and dads but there is some discrepancy.  “Many employers provide additional paid leave to women who give birth, but not to men or adoptive parents regardless of gender, because women who have given birth need time off both for physical recovery and bonding time,” said Ford.  There is another law favoring women.  The Pregnancy Discrimination Act clarifies that sex discrimination under Title VII of the Civil Rights Act includes pregnancy discrimination.  “It is illegal for an employer with 15 or more employees to fail to hire, or to discharge or discriminate in compensation, promotion or terms, conditions or privileges of employment because of pregnancy, child birth or related medical conditions,” said Ford.  Essentially this means employers should be accommodating.  

Even our Texas lawmakers have women’s best interests in mind.  “Some legislators have proposed additional federal legislation that would require employers with 15 or more employees to make reasonable accommodations for pregnancy, childbirth or related medical conditions unless the employer can demonstrate that the accommodation will impose an undue hardship on the business,” said Ford.  In the Lone Star State the law does not require that maternity or paternity leave, paid or unpaid, be given by private employers who are not covered by FMLA requirements.  

Once you are done recuperating and getting to know your new addition, you can expect to settle back in to your workplace with ease.  “Upon return from FMLA leave an employee must be restored to his or her original job or to an equivalent job with equivalent pay, benefits and other terms and conditions of employment,” said Ford.  Planning ahead ensures that everyone involved is on the same page as far as what to expect.  

You may wonder about vacation and sick days and how those come into play.  “The law allows employees to choose, or employers to mandate, that employees use accrued paid vacation leave or paid sick leave for some or all of the FMLA leave period,” said Ford.  Sit down with your partner or family and ask yourself some personal questions before attempting to take FMLA leave.  Find out if your company is covered by FMLA and if you are eligible to take leave.  The company may have specific policies that would permit you to use accrued paid vacation or sick leave.  “If the leave is foreseeable you need to give your employer at least 30 days’ notice before taking FMLA leave and in the case of a newborn or adopted child the leave must be taken within one year of the birth or arrival and must be taken in one continuous block of time,” said Ford. 

Some moms and dads work together.  If you are in this special scenario and have the same employer as your spouse, you cannot each take 12 weeks off.  “Either one person takes the entire 12 weeks or you divide the 12 weeks between the 2 of you,” said Ford.  Of course you want to keep in mind what arrangement will be the best for you, your loved ones and the new baby.  “The most important thing to do is to meet with your human resources manager as soon as you know you will need the leave and discuss your options,” said Ford.

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