By Renee Mielnicki, Esquire
Many of our clients want to offer some form of pregnancy, maternity, or parental leave to their employees because it provides numerous benefits, including those related to recruitment and retention. Federal and state law do not require that employers offer these leaves unless they are covered by certain laws. Applicable law will then dictate the details of the leave the employer must provide.
Pregnancy leave refers to leave for pregnancy related conditions. Maternity leave is often used to refer to leave for childbearing and related medical conditions and sometimes covers leave to care for and bond with the child following birth. Parental leave refers to leave for all employees, both males and females, to care for and bond with the employee’s child following the birth, adoption, or foster care placement.
The federal laws that govern these leaves are the Family Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act (“Title VII”). Whether you are covered by these laws depends on how many employees you have. For instance, 50 or more employees is needed for coverage by FMLA law where only 15 is needed for coverage by the ADA and Title VII. There are also state laws that may require employers to offer leave in addition to what the federal law provides. The number of employees needed for coverage by those laws will vary by state.
Generally speaking, here is what the above federal laws will require if you are a covered employer:
- Employers may be required to provide leave to pregnant women who need it for a disability related to their pregnancy. The amount of leave an employer may be required to provide will most likely be determined by a medical note from their healthcare provider. However, if FMLA applies, the employer may be required to provide at least 12 weeks of leave. Federal law does not require employers to pay employees during these leaves.
- Employers may be required to provide leave to women after childbirth to recover from the physical limitations caused therefrom. Leave amounts may be dictated by a note from the healthcare provider, unless the employer is covered by FMLA in which case the mother gets an automatic 12 weeks of leave
- There may be state laws that require you to offer parental leave. FMLA, which is federal law, provides up to 12 weeks of leave to care for or bond with the employee’s child following the birth, adoption, or foster care placement.
- Where parental leave is offered, employers may not provide different amounts of child bonding or caring leave to parents of different genders (male v. female employees). Parents are entitled to equal leave to care for or bond with a child. To do otherwise would be considered sex discrimination under Title VII.
- Disability and sex discrimination laws will most likely apply to policies that offer paid leave.
- If an employer compensates employees on other leaves due to any other temporary disability, the employer should treat employees with a pregnancy-related or childbirth-related disability the same way to be compliant with the Pregnancy Discrimination Act (a federal anti-discrimination law).
- Employers should be consistent with both males and females in terms of paid parental leave (i.e.. leave to care for, bond with a child or place a child in foster care). For instance, offering paid leave to just the females could be sex discrimination under Title VII.
- Employers may choose to offer a paid maternity leave to their female employees for the period of time when a woman is unable to work because of pregnancy, childbirth, and related medical conditions. However, the unintended consequences could be: (1) it could create bad morale for those who take leave for other reasons and do not get a paid benefit; and (2) it could be costly to the company. Another option may be to offer short-term disability benefits that will appeal to a broader spectrum of your workforce. These plans may provide income replacement to your female employees who are recovering from childbirth as well as any other employee who may need time off to recover from an illness or injury.
It is important to have a leave policy that complies with applicable law that is distributed to your employees, signed off by them and placed into their personnel file. Please contact us for assistance in creating one of these leave policies or if you have questions relating to these types of leaves. You can reach our human resources team by calling 724-864-8745 or emailing us at firstname.lastname@example.org. We will be happy to help!
Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.