Navigating your way through the laws of the Family and Medical Leave Act (FMLA) and your employer's leave options can be confusing. LoveToKnow spoke with Kelly Collins Woodford, J.D., associate professor in the Mitchell College of Business at the University of South Alabama to discuss leave options. For both women and men, understanding the law is the key to making sure they are being treated fairly. Dr. Woodford is an expert in all aspects of employment law and benefit matters.
FMLA and Maternity Leave Laws
LoveToKnow (LTK): What's the difference between FMLA and maternity leave?
Kelly Collins Woodford (KCF): FMLA is time off mandated by a federal statute. The federal statute requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job protected leave for specific qualifying events, including the birth of a child.
Maternity leave, in contrast, is an employee benefit offered by some employers. It is not a benefit mandated by federal law. If an employer offers maternity leave, the employer is doing more than is required under federal law. As a result, the benefits available vary widely from employer to employer. For example, some small employers who are not covered by FMLA provide only a short, unpaid leave. Other employers provide paid time off for the mother, allowing her not only to spend time with her child, but also to allow the mother to recover from childbirth.
If a woman works for a covered employer and otherwise meets the eligibility requirements for FMLA protection, the woman's maternity leave will run concurrently with FMLA. So, for example, the woman may receive six weeks of paid time under the employer's maternity leave policy and then be eligible for an additional six weeks of unpaid time off. All twelve weeks will be job protected leave under the FMLA.
LTK: So, although FMLA is a national program, not all women will qualify?
KCF: Correct. For a woman to qualify she must work for a covered employer; that is, an employer with 50 or more employees within a 75 mile radius. In addition, the woman must be an eligible employee. To be an eligible employee she must:
- Have worked for the employer for at least 12 months
- Have worked at least 1,250 hours in the 12 months preceding leave
- Work at a facility that employs at least 50 employees within a 75 mile radius (An employee can work for a covered employer and not be eligible for FMLA protection if the employer has multiple work sites and she works at a small facility that is more than 75 miles from the employer's other locations.)
If the woman does not meet all the criteria, then the birth of a child will not trigger the FMLA's protections.
A Father's Rights
LTK: What about dads? Do they get any time off under FMLA?
KCF: Yes. Men who work for a covered employer and meet the eligibility requirements set forth above are also entitled to up 12 weeks of unpaid, job protected leave following the birth of a child. Under the FMLA, time off for the birth of a child has to be taken within the first 12 months of the child's life and cannot be taken on an intermittent basis unless the employer agrees to the intermittent leave. Also, if both the mother and father work for the same employer, they are entitled only to a total of 12 weeks under FMLA. In other words, the mother and father are not each entitled to 12 weeks off if they work for the same employer.
For a man who does not work at a covered employer or who has not met the eligibility requirements for FMLA protection, the man must look to the benefit policies of the employer. Some employers provide for paternity leave; others do not. The absence of a paternity leave policy is generally not viewed as discriminatory because maternity leave is not designed solely for spending time with the new baby; it is designed to allow the mother to recover from childbirth. Men may also have protection available under the laws of some states.
LTK: Is there anything a woman can do to avoid losing her job if she takes time off after a baby but doesn't qualify for FMLA?
KCF: Possibly. First, if the employer has 15 or more employees, the employer is covered by the Pregnancy Discrimination Act, which prohibits discrimination on the basis of pregnancy, childbirth, and related medical conditions. If the employer treats the recovery from childbirth differently than it does recovery from other temporary illnesses and injuries, there is a potential Pregnancy Discrimination Act issue.
In addition, there may be protection available under the laws of some states. Some states have state statutes that provide employees in that state more protections than the federal laws. In some states, there could also be common law claims for wrongful discharge or discharge in violation of public policy; however, those claims would not be available in all states.
LTK: If a woman is put on bed rest during her pregnancy, does that count as part of FMLA?
KCF: If the employee is an eligible employee working for a covered employer, bed rest may constitute a "serious health condition" and be protected by the FMLA. Remember, however, the employee gets a total of 12 weeks per 12 month period. So if the employee is on bed rest for 10 weeks before the birth, she is only protected by the FMLA for 2 weeks after the birth. Thereafter she would have to look to protections in the employer's policies, not the FMLA.
LTK: What resources do women have if they feel they aren't getting their deserved time off?
KCF: In some situations, the best approach is to discuss the time off issue with the employer's human resources department or the management official who oversees personnel issues. As a management-side attorney, I prefer to see the employer and employee work out the issue internally rather than looking to the government or courts. Of course, seeking internal redress is not required under the statute and, realistically, is not always possible for a variety of reasons.
In situations in which an internal resolution is not possible, the woman has two potential federal government resources. First, the FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor. Second, the Pregnancy Discrimination Act is enforced by the Equal Employment Opportunity Commission. The woman can call the nearest office of either of those agencies and ask for assistance. Depending on the state where the woman works, there may also be assistance available from state or local agencies. Finally, there are attorneys who work to protect the rights of workers. Some local and state bar associations maintain information on the areas of practice of member attorneys. Some of those associations also have referral services. There are also lawyer locator services available on the Internet, including martindale.com. Martindale, for example, maintains a database of attorneys that is searchable by geographic area and area of practice. Martindale also has a rating system to help potential clients in making informed choices.