As a labor and employment law attorney (among other things), I get a lot of questions from moms-to-be about their rights in the workplace, particularly those pertaining to maternity leave. As it turns out, there are a lot of misperceptions floating around about the federal Family and Medical Leave Act or “FMLA,” including whether it applies or not in a particular work situation. Below are the most common questions I get, and the answers to each, with some background on the FMLA and its Connecticut counterpart, as well as other related laws:

Q:  Does FMLA apply to me? I would really love to get 12 weeks of paid leave.

A:  First of all, straight-up FMLA leave is UNPAID. Whether your employer pays you for any portion of your time off depends on its existing leave policies and possibly any rights afforded you under a collective bargaining agreement (in which case you probably get better than FMLA leave) or other contractual arrangement.

Image from fem2pt0.com.

More likely though, you are an at-will (i.e., no contract) employee, and unless you have worked for at least one year, for at least 1,250 hours over that one year, for an employer of at least 50 employees (at a single worksite, or within a 75-mile radius), you are not even eligible for the federal FMLA. If you find yourself in this position but nevertheless being told you will “get” 12 weeks off when you have your baby, chances are that your employer simply chooses to grant employees leave in this amount in an effort to be consistent with most other mid-size to large workplaces; if you work for a smaller business you may be looking at merely 6 weeks off, with additional time only in the event of a c-section delivery or other complications at birth.

So what is this 12 weeks all about? The FMLA grants eligible employees (see above) up to 12 weeks of job-protected, benefits-protected unpaid leave from work. This protection means that upon return to work, your employer must place you in the same or in an essentially similar position in terms of job duties, pay, and benefits. In addition to time off to care for a newborn child, adoptive parents may take the time to care for a newly adopted child, and employees who are seriously ill or caring for seriously ill relatives may also be eligible for leave. Finally, there are relatively recent provisions pertaining to military families, but those are beyond the scope of this post.

Q:  What about paternity leave?

Image from The Telegraph.

A:  That’s a meaningless label. Maternity, paternity–the FMLA doesn’t care if you are female or male, just like it doesn’t matter if you actually gave birth or not–the leave is to be a parent to a new addition to the family. However, if you and your spouse work for the same employer, be aware that your combined leave between the two of you may be limited to a total of 12 weeks to care for a newly born or adopted child.

Q:  But really? It’s unpaid? I know people who do get paid.

A:  That’s either because they work for a bigger company with generous paid leave provisions, or because the employer is forcing the employee to exhaust her paid vacation, sick, and other time concurrently with her unpaid 12 weeks of FMLA leave. Most employers take advantage of this practical option. That way, you can’t say you would like to use your 3 weeks of paid vacation time first, followed immediately by your 12 weeks of unpaid FMLA time, for a total of 15 weeks with the baby. Connecticut also has a relatively new sick leave law, and any mandatory leave you are entitled to under this law can also be simultaneously exhausted under FMLA. However, be aware if your employer has any exact policies on this, and if not, try to find out how similarly situated employees have been handled in the past. If someone was out for surgery and given a total of 15 weeks, with the first 3 paid and the next 12 deemed their “unpaid FMLA leave,” you should speak up and request the same thing.

A reminder of how poorly we fare in the paid leave department, just to brighten your day! Image from Pregnancy & Newborn Magazine.

Q:  Why do some employers say that we get 6 weeks off for a vaginal delivery, and 12 weeks off for a c-section? They say it’s a separate Connecticut law.

A:  It is and it isn’t. First, to get this out of the way, Connecticut does have its own version of FMLA, and it grants 16 weeks of unpaid leave over a 24-month period, for reasons similar to the federal law, except that you need at least 75 employees, not 50, in the workplace, and it does not apply to state, municipal, board of education, or private elementary or secondary school employers.

The “6 and 12” thing most likely arose out of employers’ interpretations of the pregnancy discrimination provisions of Connecticut’s Fair Employment Practices Act (CFEPA), which you can find in a simple Google search. The relevant section is 46a-60(a)(7) of the Connecticut General Statutes. In a nutshell, it makes it illegal for an employer to discriminate against you because of your pregnancy, including firing you because you are pregnant, or refusing you a “reasonable leave of absence for disability” that results from pregnancy. For whatever reason, “reasonable leave” turned into 6 weeks for a vaginal delivery and 12 weeks for a c-section. Unless something new has come up recently, you won’t find this in case law anywhere–it has just been my observation that this is what employers tend to do. However, depending on the scenario, the case may be made for a longer period of leave due to complication, or a shorter period of leave for an easy birth and recovery.

Similarly, the federal anti-discrimination law known as “Title VII” also protects the rights of pregnant women in the workplace, notably, by making it illegal to refuse to hire a woman based on her pregnancy (as long as she can perform the essential functions of the job), and by ensuring that pregnancy benefits are extended to all women regardless of marital status, among other protections.

Note that CFEPA does NOT apply to you if your employer has fewer than three employees, including you.

Q.  Ok, so these laws basically say that you can’t fire a pregnant woman, right? I remember Lindsay Lohan making some crappy movie about getting pregnant so that she could save her job.

A.  Yeah, I haven’t seen the movie. But the answer is no, the simple state of being pregnant does not insulate you from being fired or laid off, as long as the reason is not your pregnancy. If your employer decides that your performance is inadequate, or if you violate a workplace rule, for example, you can absolutely be fired, pregnant or not. If your employer needs to conduct a reduction in force and you get laid off in the process due to lack of work, this is also legal, even if you are pregnant.

Image from Wikipedia.

In reality, does it look pretty bad if a business decides to terminate its only pregnant, perhaps its only female employee? Yep, especially if there are other factors that just make the situation look bad — past accusations of sex discrimination, ongoing disputes with the employee in question about taking leave for pregnancy-related medical appointments, etc. So it may be true that a pregnant woman is less likely to lose her job than her non-pregnant coworkers.

My usual disclaimer:  These laws are complicated, so talk to an attorney if you think you’ve experienced pregnancy discrimination. The foregoing is a general summary and is not intended to serve as legal advice in any particular situation! But it’s my pleasure sharing the knowledge with you all.

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