Maternity and Parental Leave in Montana

Montana's Human Rights Act and the FMLA allow Montana employees to take time off for pregnancy and childbirth.

By , J.D., UC Berkeley School of Law

Montana's Human Rights Act requires employers to give employees time off for pregnancy and childbirth. And the federal Family and Medical Leave Act (FMLA) gives Montanans the right to take up to 12 weeks of unpaid leave for:

  • pregnancy
  • childbirth, and
  • parenting.

In addition, the federal Pregnancy Discrimination Act (PDA) prohibits your employer from discriminating against you because of your pregnancy, which might give you the right to take time off work in some cases. And the 2023 Pregnant Workers Fairness Act strengthens your workplace protections during pregnancy.

Taking Maternity Leave During Pregnancy in Montana

A mix of federal and state laws might protect you if you work in Montana and need pregnancy leave. But any leave you might be able to take under these laws is unpaid.

Pregnancy Disability Leave Under Montana's Human Rights Act

Under Montana's Human Rights Act, all employers must give employees a reasonable leave of absence for the temporary disabilities associated with pregnancy and childbirth. (Mont. Code § 49-2-310(2).) So, if your employer isn't covered by the FMLA (see below), you might still be entitled to a "reasonable" amount of time off while you can't work due to pregnancy.

Under Montana's Human Rights Act, when your pregnancy disability leave ends, you're entitled to have your old job back or a position that's equivalent in:

  • pay and accumulated seniority
  • retirement and fringe benefits, and
  • other service credits.

Your employer must reinstate you unless the employer's circumstances have changed so much that reinstatement would be impossible or unreasonable. (Mont. Code § 49-2-311.)

Time Off Work Under the Pregnancy Discrimination Act

The Pregnancy Discrimination Act bans sex discrimination based on pregnancy. While the PDA doesn't require employers to give pregnant employees time off work, it does require employers to treat employees who can't work due to pregnancy the same as other employees who are temporarily disabled for other reasons. (42 U.S.C. § 2000e(k).)

For example, if your company lets employees take time off for injuries or illnesses (like back injuries or cancer therapy), you must be allowed to take the same time off when you can't work because of your pregnancy.

Accommodations Under the Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) requires covered employers to provide reasonable accommodations for employees who need them because of pregnancy, childbirth, or related medical conditions, unless doing so would create an "undue hardship" for the business. (42 U.S.C. § 2000gg-1.) Congress included time off work on a list of examples of reasonable accommodations under the PWFA.

(Also, learn about your workplace accommodation rights under the Americans with Disabilities Act (ADA)).

Family and Medical Leave for Pregnancy Under the FMLA

The FMLA gives eligible employees the right to take up to 12 weeks off work (unpaid) in a one-year period for serious health conditions, including pregnancy. But the FMLA applies only to employers with at least 50 employees. To be eligible for FMLA leave, you must have worked:

  • for a covered employer for at least 12 months, and
  • for at least 1,250 hours during the 12 months immediately preceding your leave.

If you qualify, you can use FMLA leave when you can't work because of your pregnancy and childbirth and for prenatal care such as routine check-ups and doctor visits. The FMLA allows you to take leave intermittently, if medically necessary, instead of all at once.

(Learn more about taking FMLA leave for pregnancy, childbirth, and parenting.)

Parenting Leave in Montana

Montana state law doesn't require employers to provide parenting leave. The pregnancy disability leave requirement of the Montana Human Rights Act applies only during pregnancy and recovery from childbirth. It doesn't give employees the right to time off to bond with their new baby.

The FMLA, however, gives employees in Montana the right to take parental leave when they have a new child—whether that child is a biological, adopted, or foster child. (But remember, the FMLA only applies to companies with 50 or more employees.)

Any parental leave you use is part of your total 12-week FMLA leave. So, if you use five weeks of FMLA leave during your pregnancy, you'll still have seven weeks to use for parenting. But there are some limits.

Intermittent Parental Leave Under the FMLA

You aren't automatically entitled to use FMLA parental leave intermittently. If you want to use your parenting leave a little at a time—for example, by returning to work part-time for a while—your employer must agree to it.

Paternity Leave for Parents Who Work for the Same Employer

If you're married to someone who works for the same company, your employer can limit your total amount of FMLA leave for parenting to 12 weeks for both of you. So, if you use six weeks of parental leave when your new child is born, your spouse could use only six weeks of FMLA leave for parenting.

Whatever portion of your own 12 weeks of FMLA leave you don't use for parenting will still be available to you for other reasons, such as your own serious illness. The same is true for your spouse.

Getting Paid During Maternity and Parental Leave in Montana

FMLA leave and leave under the Montana Human Rights Act is unpaid. But you can ask (or your employer might require you) to use your accrued paid time off (like sick days, vacation, or PTO) to get paid while you're off work.

Your employer might also offer maternity, paternity, or parental leave benefits. Or you might have short-term disability insurance (SDI) through your employer to cover your pregnancy and recovery from childbirth. Talk to your HR representative or manager (and check your employee handbook) to find out what types of leave are available to you.

If your employer doesn't provide any coverage, learn how to get a private SDI policy to cover pregnancy.

Updated September 8, 2023

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