It’s fair to say that most new mothers want to take at least some time off of work during their pregnancy or after they give birth. But not every employee has access to parental leave through their employer or a paid family leave policy.
Fortunately, the Family and Medical Leave Act offers FMLA maternity leave to eligible employees in all 50 states. Although it isn’t paid, it guarantees new mothers up to 12 weeks of leave for pregnancy-related medical issues or to bond with their child.
Here’s what you need to know about FMLA maternity leave, and what other types of leave might be available to new parents in your state.
What Is FMLA Leave?
The Family and Medical Leave Act (FMLA) is a federal law passed in 1993 that ensures employees have access to unpaid leave if they meet certain eligibility conditions. FMLA leave doesn’t just cover maternity leave, although that is one qualifying situation. It also covers military caregiver leave and caring for a sick family member.
Here are the primary situations under which an employee may qualify for FMLA:
- Bonding with a new child (by birth, foster care, or adoption)
- Caring for a seriously ill family member
- Treating an employee’s own serious health condition
- Caring for a family member who was injured on military duty
FMLA provides up to 12 workweeks of leave for most situations, and up to 26 weeks for military caregiver leave. An employee may qualify for more than one type of leave, as long as they don’t exceed the maximum number of weeks in a 12-month period.
How Does FMLA Maternity Leave Work?
The Family and Medical Leave Act doesn’t offer leave specifically for being pregnant or giving birth, but employees may meet FMLA criteria in one of two ways:
- To take time off to bond with a child
- To address health conditions related to pregnancy
Since the Act doesn’t define “FMLA maternity leave” as a separate category, all of these criteria apply equally to paternity leave, and fathers can take time off work to bond with a new child or to care for a spouse who is incapacitated during their pregnancy.
Each parent can request a total of 12 weeks of unpaid leave in a 12-month period, but it must take place within one year following the birth or adoption of a child, or the arrival of a child into foster care. FMLA maternity leave can be taken intermittently if the employer approves or if it’s medically necessary.
If both parents work for the same employer, they may be limited to 12 weeks of parental leave in all, rather than taking separate leave periods back to back.
FMLA Maternity Leave Benefits
According to the U.S. Department of Labor at DOL.gov, eligible employees have several rights and protections while they’re on FMLA maternity leave. These include:
- The right to maintain their health benefits. If the employer receives health insurance benefits, they must continue to receive them while on FMLA maternity leave. However, they’ll still need to pay their usual share of the premium.
- The right to return to work in the same position or an equivalent one. FMLA leave is job-protected, which means an employee can’t be terminated or transferred while on FMLA maternity leave. The exception is if they’re moved to an equivalent role with the same pay, location, work schedule, and benefits.
FMLA Maternity Leave Obligations
Alongside these protections, employees have a few obligations to their employer when they take a leave of absence under FMLA:
- They must give 30 days’ notice if possible. Unless the need for leave is unexpected and medically necessary, the employee should let their employer know in advance. For example, if an employee intends to take FMLA maternity leave after their baby is born, they should let their human resources department know the due date.
- They must provide a medical certification if it’s requested. FMLA maternity leave doesn’t cover pregnancy unless there are related medical conditions, such as severe morning sickness or preeclampsia. Pregnant employees may be asked to provide evidence from their health care provider of their need for prenatal care.
Employers and employees should work together to decide if any sick leave, vacation time, or accrued paid leave can be used while on FMLA maternity leave.
Who Is Eligible for FMLA Maternity Leave?
FMLA covers employees in all 50 states and Washington, D.C., but not every parent or foster parent is eligible. An employee needs to have spent a minimum amount of time working for a covered employer in order to meet the eligibility requirements.
Here’s how the DOL’s Fact Sheet #28 defines a covered employer:
- Any public or private school (primary or secondary)
- Any government agency (state, local, or federal)
- Private employers with at least 50 employees
And here are the criteria employees must meet:
- At least 12 months of work with the same employer
- At least 1,250 hours of work in the previous 12 months (full or part-time)
- At least 50 employees within a 75-mile radius
If an employee isn’t eligible for FMLA maternity leave, they may still have other options. The Pregnancy Non-Discrimination Act allows for pregnancy disability leave, even if an employee doesn’t meet the eligibility requirements for FMLA.
And some state laws, such as the California Family Rights Act (CFRA), may exceed or expand upon the rights employees have under FMLA.
Is FMLA Maternity Leave Paid?
As a general rule, FMLA maternity leave isn’t paid, but employees may be able to draw from their accrued sick time or vacation time while they’re on leave.
In New York, for example, new parents can get up to 67% of their weekly wage for 12 weeks. Employees are eligible for Paid Family Leave after 26 weeks of work with the same employer, which is less than the 12 months required under FMLA.
Under California’s Paid Family Leave program — funded by State Disability Insurance — employees are eligible to receive 60-70% of their wages for 8 weeks.
However, the majority of states don’t have paid family leave programs, or they apply to a more limited subset of workers, such as state employees.
Employees may also qualify for short-term disability insurance if they’re incapacitated following a pregnancy or if a C-section is required.
In rare cases, an employee may be eligible for paid family leave without qualifying for FMLA maternity leave — which means their employer isn’t required to keep their job available for them when they return.
Handle FMLA Leave Requests With Pulpstream
Employees have some degree of discretion around when to take FMLA maternity leave, as long as it’s completed within the first year after a child’s birth or adoption. But it’s up to the employer to make sure FMLA leave is categorized appropriately, and to honor any health benefits and job protections the employee is entitled to.
Make things easier on your human resources team by using Pulpstream as your leave of absence management system. Your employees can submit their own LoA requests and upload medical certifications, while your HR team can track leave balances and ensure that any vacation time and PTO requests are calculated accurately.
Pulpstream’s no-code interface means you don’t have to rely on anyone else to set it up, and you can use it for other tasks too, such as claims and incident management. Get in touch today to request a demo and see it in action!