Maternity Leave Laws

From LoveToKnow Pregnancy

Maternity leave laws differ from state to state while some states regulate maternity leave only for government employees. Others have laws that apply to private companies, too. Individual employers may offer more generous benefits than the state requires.

Staying at home with the kids is the best part of maternity leave.

The Family and Medical Leave Act

In the United States, the Family and Medical Leave Act (FMLA) sets the minimum standard for maternity leave. This federal law applies to government agencies and to companies that have 50 or more employees.

FMLA requires employers to provide up to twelve unpaid work weeks per twelve-month period for:

  • the birth and care of a new baby
  • placement and care of a newly adopted child or of a foster child
  • certain other family and medical reasons

Unfortunately for new parents, FMLA does not require employers to pay employees while they are on maternity leave. The employer may require a worker to use sick leave or vacation time as part of the time off. The good news is that both mothers and fathers can be eligible for time off when a new baby is born.

Pregnancy Complications

An employer can count time off due to pregnancy complications as part of the twelve weeks of FMLA leave. If you need to take time off for an illness or to care for another family member, that time also counts as part of the twelve weeks.

Eligibility for FMLA Leave

To be eligible for maternity leave under FMLA, you must have worked for your employer for at least 12 months. During those 12 months, you must have worked at least 1,250 hours. This averages out to 24 hours per week over the course of one year. However, the hours do not have to be spread out uniformly. In addition, the twelve months do not have to be consecutive.

You must notify your employer at least 30 days in advance if you need FMLA leave. If that's not practical (for example, if your baby is premature), you must tell your employer as soon as possible. Visit the Compliance Assistance portion of the FMLA web site or contact the Department of Labor to make sure you're following the rules.

Returning to Work

In most cases, your employer can not fire you for taking maternity leave under FMLA rules. There are some exceptions, including the following:

  • If you tell your employer you do not plan to return to work after you have the baby.
  • If there are layoffs at the company and your job is among those affected.
  • If you have used up your FMLA leave time and are not able to return to work.
  • If you have a highly-paid, salaried job that is considered "key" to the workings of the company. However, this applies only in limited circumstances.

For More Information

To learn more about FMLA regulations, visit the U.S. Department of Labor's FMLA web site. The Department of Labor also has a site to help people learn about employment law, including maternity leave laws. Visit the e-laws site and select the Family and Medical Leave Act Advisor.

If FMLA Leave Is Denied

If you qualify for maternity leave and your employer refuses to grant it, you can file a complaint. For FMLA violations, you have two years from the date of the violation. If you can prove your employer's action was willful, you have three years to file.

Complaints may be filed with the Secretary of Labor or you can check your phone book for the nearest office of the Wage and Hour Division of the Employment Standards Administration, U. S. Department of Labor, and call for more information. If your complaint is valid, the Department of Labor will usually negotiate with your employer to obtain leave for you.

You can also file a lawsuit on your own. If you win, you may be able to recover your legal costs from your employer.

State Maternity Leave Laws

Each state has its own regulations about medical leave, including maternity leave. To find your state's maternity leave laws, try your state's Labor Office. You'll find a list of links to of.htm state labor offices at the U.S. Department of Labor site. While some states post information on the web, others simply offer contact information and you'll have to call the office for more information.

It is worth taking the trouble to find out about maternity leave laws in your state. Even if you're not eligible for leave under FMLA, you might be eligible under state law.


 


Comments

Diana, are you a full-time employee at a company that employs more than 50 people? If not, your boss isn't really required to hold your job or promise you the same hours when you return. You will likely need to work out an agreement with your boss based on your situation, but I don't think that she's required to give you the same hours.

-- Contributed by: HollySwanson

I am a waitress in Maine. I am having a baby in 6 weeks. Because of complications I had to leave work this week and am planning on returning 2 weeks after the baby is born for a total of 8 weeks off. Does my boss have to give me back the same hours? I know she is not firing me but she has hired someone to work my shifts and I am afraid when I go back I will be put of different days and make less money. Thanks

-- Contributed by: Diana

Paula,

maternity leave laws vary greatly based on the state and size of the company your niece works out. Maternity leave usually guarantees that a woman can take time off from her job, but it does not assure that she will be paid during that time. She should get a copy of the employee handbook or contact her local employment agency for more information about what she qualifies for.

-- Contributed by: HollySwanson
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