Family leave laws (also known as maternity or paternity leave laws) allow employees to take time off from work to care for a new child. Under federal law, employers are required to provide only unpaid leave to their workers. However, a few states have closed this gap and now have laws granting employees paid short-term disability benefits or paid leave for pregnancy-related conditions. If you live in one of these states, you may use the most generous pregnancy benefits given under either state or federal law.
Federal Pregnancy Leave Laws
There are two federal laws that address the issue of pregnancy leave in the workplace. Employers who don't allow employees to take time off according to these laws can be sued in a private civil action for violations of these laws.
Family and Medical Leave Act
Under the Family and Medical Leave Act of 1993 (FMLA), an employee can take a maximum of 12 work weeks of unpaid leave after the birth of a child or to welcome an adopted or foster care child. The 12 weeks must occur within one year of the child’s birth, adoption, or placement.
The FMLA also allows employees to take a similar amount of unpaid leave to care for an immediate family member with a serious health condition, or to deal with the employee’s own serious health condition. A serious health condition is defined to include an illness or other condition that makes you unable to work and requires an overnight stay in a hospital. It also includes a condition where you are unable to work for more than three days because of incapacity due to pregnancy, prenatal care, or a serious health condition following childbirth that requires continuing treatment.
The FMLA applies to both male and female employees. You are protected under the FMLA if you meet the following conditions:
- You work for a business with 50 or more employees within a 75-mile radius. A business must count all employees on the payroll, including part-time employees and those on suspension or a leave of absence.
- You have worked for the business for the last 12 months.
- You have worked at least 1250 hours in that 12-month period.
The Wage and Hour Division of the Department of Labor investigates violations of the FMLA.
Pregnancy Discrimination Act
The Pregnancy Discrimination Act (PDA) prevents employers from discriminating against pregnant women in the workplace. The PDA covers acts of discrimination based on pregnancy, childbirth, or associated medical conditions. Basically, employers are not allowed to make employment-related decisions based on a woman’s pregnancy, such as hiring and firing, seniority, and giving benefits and sick leave. However, employers are not required to give preferential treatment to pregnant employees.
The PDA applies to businesses employing at least fifteen employees.
To make a claim under the PDA, you will need to show that your employer treated you differently than non-pregnant employees in similar situations. For instance, if the fact that you missed work is at issue, employers cannot ignore the fact that you missed days of work unless the employer normally overlooks missed days for other employees. As such, you will need to explain how the employer handled employees who temporarily were unable to work due to non-pregnancy related medical reasons.
The Equal Employment Opportunity Commission investigates charges of discrimination under the PDA.
State Pregnancy Leave Laws and Short-Term Disability
Many states have passed their own version of the FMLA. The state law may provide additional benefits than the federal law, such as a longer leave of absence. For more information, see Nolo's article on state family and medical leave laws.
In addition, a handful of states have started offering paid short-term disability benefits to all qualified employees in the state. These short-term disability plans allow you to receive a portion of your pay if you are unable to work due to injury to illness, including pregnancy. The following states offer paid short-term disability benefits for pregnancy or paid family leave for the birth of a child.
California has a short-term disability insurance (SDI) program that provides eight to ten weeks of benefits for a normal pregnancy and childbirth. California's paid family leave program also provides up to six weeks of paid leave for qualified employees. Benefits under both programs are 55% of normal wages. For more information, see our article on California short-term disability.
The District of Columbia provides a varying length of paid family leave to qualified employees based on the size of the employer. Employees must have worked at least one year for the employer without a gap, and at least 1,000 hours in the past 12 months. For more information, see our article on D.C. family leave.
Hawaii provides up to 26 weeks of paid benefits, or as many benefits as the employer’s plan allows, for qualified employees. Employees must have worked at least 14 weeks for their employer, worked at least 20 hours per week, and been paid at least $400 per week. These temporary disability insurance (TDI) benefits are either 58% of your wages or as decided by the employer’s plan. For more information, see our article on Hawaii's TDI benefits.
New Jersey provides up to 26 weeks of paid benefits to qualified employees through its temporary disability insurance (TDI) program. Employees must have worked at least 20 weeks and earned at least $145 per week. Or, they must have earned at least $7,300 in the previous year. Benefits are two-thirds of your average weekly salary. For more information, see our article on New Jersey TDI Benefits.
New York provides up to 26 weeks of paid benefits to qualified employees through its disability benefits (DB) law. Employees must have worked for at least four weeks for their employer. Benefits are limited to 50% of average weekly wages. For more information, see our article on New York's short-term disability benefits (DB) program.
Rhode Island provides up to 30 weeks of paid short-term disability benefits to qualified employees through temporary disability insurance (TDI). The eligibility and benefit calculations are fairly complicated. For more information, see our article on Rhode Island's temporary disability benefits program.
Starting in 2015, Washington will provide up to five weeks of paid leave for qualified employees. Employees must have worked at least 680 hours during the last year. Benefits are based on the number of hours worked per week. For more information, see Nolo's article on Washington family leave.