Maternity Leave and Parental Leave Rights in New York

New York law provides disability benefits for pregnant employees, and the federal FMLA may provide parental leave after a child is born.

Legally speaking, "maternity" or parental leave has two parts: the time you take off while you are unable to work due to pregnancy and the physical experience of childbirth, and the time you take off to spend with your new child. For the first part, pregnancy disability leave, New York is one of a small handful of states that gives employees the right to time off that is paid through insurance.

However, New York is not so generous when it comes to the second part, parental leave. Although a number of states have laws requiring employers to provide parental leave, New York is not one of them. New York employees must rely on the federal Family and Medical Leave Act (FMLA) for their parental leave rights.

Pregnancy Disability Leave

New York law requires employers to provide short-term disability insurance to their employees. This insurance provides partial wage replacement (50% of the employee's wages, up to a weekly cap) to employees who are temporarily unable to work for any reason, including pregnancy. (The insurance doesn't cover work-related injuries or illnesses, which are compensable under workers' compensation instead.)

However, this is not intended to pay for parental leave. An employee is entitled to collect short-term disability only while she is actually unable to work due to pregnancy or childbirth. An employee who is unable to work more than four to six weeks prior to giving birth or continues to be unable to work more than four to six weeks after giving birth may have to submit additional medical documentation to support her claim. The maximum period of disability under the law is 26 weeks.

For more information on New York's pregnancy disability leave rules, see New York Short-Term Disability and Pregnancy.

Parental Leave in New York

Although some states require employers to provide parental leave, New York is not among them. The only parental leave rights available under New York law are for adoptive parents, who are legally entitled to the same parental leave an employer offers to biological parents. However, this law doesn't require employers to offer any parental leave at all: It requires only that whatever leave an employer choose to offer be made equally available to those who become parents by adoption.

However, the federal FMLA may provide some help. The FMLA requires employers to allow eligible employees to take up to 12 weeks off in a 12-month period for their own serious health condition; to care for a family member with a serious health condition; to handle certain practical matters arising from a family member's military deployment; or to bond with a new child. Employers are subject to the law only if they have at least 50 employees, and employees must meet several requirements to be eligible. For more information on FMLA eligibility, see Who Is Eligible for FMLA Leave?

Using FMLA Parental Leave

You must finish taking your parental leave under the FMLA within one year after your new child arrives. This leave is equally available to men and women, and to biological, adoptive, or foster parents.

The FMLA requires only that employers offer unpaid leave. However, if you have accrued paid leave (such as vacation time), you may choose -- or your employer may require you -- to use it during your FMLA leave. This allows you to get paid for at least some of your leave, but it also means you must use up your accrued time off. You may use accrued time off only for the purposes allowed under your employer's policy. For example, you may not be able to use accrued sick days during your parental leave, if your employer's policy makes sick leave available only to those who are ill.

During your time off, your employer must continue your health insurance benefits just as if you were still working. If you usually have to pay part of the premium, you must continue doing so while you are out; your employer must also continue to pay its share. If your leave is unpaid, and you usually pay your portion through payroll deductions, your employer will arrange for you to pay in a different way.

If Both Parents Work for the Same Employer

The FMLA allows employers to limit the time off available to married parents who work for the same employer. For these parents, an employer may (but does not have to) require parents to combine their parental leave, so that they are entitled to a total of 12 weeks of parental leave, not 12 weeks each. However, each parent can still use his or her remaining FMLA time for other purposes covered by the law.

For example, if an employee took a total of one week of FMLA leave during her pregnancy (for prenatal care and morning sickness, for example), she would still have 11 weeks left to use for parental leave. This would leave her spouse who works for the same employer only one week of parental leave. However, he would still have his 11 weeks of FMLA leave to use for other purposes. For example, if their child was born with a serious disability, he could use FMLA leave to care for a family member with a serious health condition.

When FMLA Leave Ends

When your FMLA leave is up, your employer must reinstate you to the same position you held prior to taking leave. If your position is no longer available, the employer must restore you to an equivalent position: one that is nearly identical in every important respect to your prior position. Your employer must also restore the benefits you had prior to taking leave.

If you choose not to return to work after having a child, your employer may be legally entitled to recoup what it spent on your health insurance during your FMLA leave. However, this is allowed only if your decision not to return to work is voluntary. If you are unable to return to work (for example, because your child was premature and requires constant care), your employer can't require you to reimburse your health insurance costs.

For more information, see our article on FMLA leave for pregnancy and parenting.

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