Need to Know: Demystifying the FMLA and Maternity Leave

23 comments

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.

23 comments on “Need to Know: Demystifying the FMLA and Maternity Leave”

  1. Hi, thanks for all this info. I never expected to have to be looking into this and am glad my coworker thought of it.
    I live in Ohio and worked for a small (25 ppl) quickly expanding company that just fired me and only me at 37 weeks pregnant, right before I would be going on maternity leave (me and employers hadn’t discussed it in detail yet). I’d been given a raise not 3 months ago and not been given a bad performance review in over a yea, last write up was for being late under a different manager. The owner’s wife who does payroll told me less than a month after said raise, at a company party, that there would be work for me when I returned from maternity leave. I should also mention before that while i was getting a beer out of the cooler for my husband, she saw that and said to the owner “she shouldn’t be drinking.” I’m suspecting this termination was mostly her idea since he and I got along very well, he was like a grandfather to me.
    The store I work at is in a glorified flea-market and not busy during the week, so all of my coworkers come in late even managers. The manager above mine came in to give me and two others write ups for being late, however mine also had a bunch of other random nonsensical reasons for termination. When she gave them theirs (I had just walked in half an hour early, ironically), she said to one the management were “just going through the motions,” meaning their writeups were just to cover the employer’s tracks when giving me a write up. My coworkers and me all got along well and they were just as surprised about my termination, I’m still in touch with several of them that are willing to write testimonies for me against the random crap (pretext?) they gave.

    The only thing I’m not sure about is if I should try to talk to my employers first about working something out. What I really want is my job back, I loved it and my coworkers and customers, but have a feeling that the owner’s wife is controlling this and cannot be reasoned with. These bosses are hardly ever at our store, my manager is one of my closest friends and she is supposed to have full reign of our store. We both fear for her position now.

    The last person fired was my previous manager about a year ago, fired for literally yelling at and about customers, being rude. He was offered a nice severance check. My termination was less than a week ago and they offered me nothing. I have the discrimination EEOC forms to turn in and feel like I have a solid case with my coworkers’ testimonies and maybe even without.

    Sorry this is so long but my question is, before turning the papers in or seeking out a local lawyer, should I mention to my ex employer that I’m aware of the shady revealing things they said previous to my termination, ask about severance or settlement, mention pursuing legal action if they insist on being like this?

  2. Does the 16 week fmla allowance take effect on the birthday of your child or when your dr pulls you from work? I am curious if I stop working early due to my pregnancy, will that take be part of the allowed fmla.

    1. Yes, if you go out on leave before the baby is born, and just continue to stay home through the postpartum period, that first day of leave starts the clock for your total FMLA leave period, unless your company has a policy stating something to the contrary. Given that most employers choose to run FMLA unpaid leave concurrently with any paid leave they may provide, so it’s unlikely that they’ll extend your total time out of work by deeming the FMLA-specific period to start with the birth of the child. Should they technically treat the two periods – pre and postpartum – as two separate leave periods (pregnancy disability versus FMLA for the birth of a child), and give you something longer than 16 weeks (assuming this is under CT law and not federal)? That would be an interesting argument to make. But the generally accepted practice is to treat the entire thing as one long leave period, 12 or 16 weeks tops depending which law covers you, and I’m not aware of any cases interpreting this differently, although actual employer practices vary widely. Some places just give you 6 months off, for example, as a matter of company policy. I have never worked for a big company of any kind so such practices are pretty foreign to me. 🙂

  3. Hi Melanie,
    Thank you for writing this article. I had a few questions I had hoped you could help me with. I understand that the FMLA law applies to people working in businesses with more than 75 people in Connecticut and more than 50 people federally. So do employees in business with less than 50 people – mine has less than 10, have any rights in terms of pregnancy leave? If I want to take off what I thought was a standard 3 months, could my employer let me go legally? Do I have the right by law to any time off in a smaller office like this? Thanks so much,

  4. I will be starting my maternity leave next month and was planning on taking 16 weeks. I was told that I would be expected to cover the full cost of my health insurance while I’m out even though my employer normally contributes. I have found some information online that would suggests that violates Federal FMLA. Would I not be covered by that because I am planning on taking 16 weeks which is covered by Connecticut FMLA? Also, I know that I will be exhausting my CT FMLA protection. Does that mean I would not be eligible for FMLA again from two years from the first day that I take my leave or does it start at the end of the leave?

  5. Hi, Thank you for writing this article. It has been the only thing I have found discussing the state of CT vs. Federal Law. I have a question that hopefully you can answer. I used my 16 weeks at the beginning of this year with my first child and was just shocked to find out that we are expecting #2 early next year. Would I still be eligible for the Federal FMLA even though I have used the CT FMLA that states you can not take leave for 24months?
    I am freaking out that I will not be able to take leave! Any information would be most helpful.
    Thanks so much!

    1. Heather, thanks for the props! If you Google it, you will find that the CT Department of Labor has a PDF available online comparing the federal and state FMLAs. The U.S. DOL has a similar publication on this. However, neither of those appear to address your question directly. I thought about it, and I’m kind of surprised this doesn’t come up more often. I would try to make the argument when it gets to the point that you are out about your pregnancy and need to have that conversation with your employer. Just mention it that way and see what they say. You also want to find out how your employer counts the 24-month period. Is day one of the 24 months the same as day one of your 16-week leave? That’s common, but not the same everywhere, so you will want to find out. I would also suggest calling the state or federal DOL to see if someone there can give you an answer. If you find an attorney who can dig around to see how the laws have been interpreted, that might help … but try the free phone calls to the state/feds first. 🙂 Best of luck!

      1. Thanks so much for you quick response. I am going to give them a call and see what they can tell me.
        Thanks again.

      2. Heather — I know this is an old post but wondering how your situation turned out as I am in a similar situation now…Thanks!

  6. Hi, your article has been very helpful. I do have a lingering question that I have been unable to find the answer to. My sister just recently got hired as a teacher, so this is her first year. She is considering trying to get pregnant. If she were to get pregnant, she would have the child end of May, so there would be about 3 weeks of school she would miss until summer break (pending any snow days etc). She has 21 days total of sick and personal days. Her contract does not specify anything about maternity, except that sick time can be used toward childrearing. The FMLA states that an “eligible employee” must be employed for 12 months. She has not been employed for 12 months and will not be by May when the baby would potentially be born…so what would her options be? Thank you!

      1. First, the FMLA regulations contain a whole chapter of special rules pertaining only to school employees who work the academic term, and you can find them at: http://www.law.cornell.edu/cfr/text/29/825/subpart-F. I haven’t done the research in terms of what is considered “12 months” of employment for teachers who work a 10-month school year (i.e., whether there’s an exception made because of this). And the reality is, despite what the law requires and her union contract says, there may be an unofficial practice that applies in this particular situation, which only her supervisor will be able to assess and apply, In other words, they may require her to take leave in May or possibly earlier for the sake of continuity of instruction for her students (see the special rules linked to above), but I can’t speak to how much more leave she will receive beyond the ordinary summer break and/or whether that will count as standard FMLA leave or extra leave granted to her, either under the FMLA regs., union contract, or informal practice. You could pay a lawyer to research this for you, but why not start with the regs. above and maybe have her ask her fellow teachers if they know what happens in this situation, if she feels comfortable? Good luck!

  7. I’m confused about the Federal vs State FMLA rules. Employees of municipalities are not covered by the state of CT, so can they use the federal FMLA rules? Why doesn’t CT include them in their own laws?

    1. Yes, for municipal employees the federal statute applies. I am unsure of the public policy reasons behind why our legislature chose not to extend the state FMLA to them.

  8. Hello, your article is very informative, thank you. I started a job at a hospital here in Indiana last Nov. I’m a good worker never had a sick day and work extra hours if needed. Well since starting my job I have become pregnant and my doctor wants to put me on bed rest. I work in housekeeping so my job does have certain physical demands. I’m scared if I follow my doctors orders they will fire me. The economy here is still very poor and I was lucky to get this job. I’m afraid if I keep working like I am I will lose the baby. This is a horrid position to be in. Do I have any options?

    1. I can’t give you legal advice, but you would need to check the laws in your jurisdiction to see what the conditions are for taking leave in your condition. Your doctor may be able to put in writing the reasons for the bedrest and how long that condition is expected to last. Good luck to you.

  9. Even though she was told in a previous conversation (not written) with our employer that she would receive 12 weeks not including her vacation and sick time, My coworker was just informed today, on her doctor-identified due date (though probably not her actual, given it’s her first child) that her leave actually includes her accumulated sick and vacation time – and that because our office (Massachusetts) only has 6 people (the DC office has 20), they aren’t even required to give her 12 weeks off (which I know is true). Furthermore, she was informed that if she didn’t end up having her baby at or near her due date, until then she was expected to come into the office rather than allow her to work from home (she has an hour commute, and we generally have a pretty flexible work environment). This seems especially A) idiotic, and B) because it’s a woman-owned company, kind of cruddy treatment towards my coworker, who gets here early, stays late, and is an all-around excellent employee. She’s totally distraught. What gives? And what are her options? We discussed it this morning and it appears that everything they are saying to her is completely legal, and she doesn’t have much documentation.

    1. Hi Andrea. While I can’t advise you on this particular situation, it would be helpful to see what the Massachusetts anti-discrimination laws require of employers as far as the accommodation of pregnant employees is concerned, as well as what the company has done for similarly situated employees in the past. If she is no longer able to perform all of the duties of her job due to her pregnancy being a disabling condition, then they may be required to allow her to begin leave early, or allow for some kind of flexibility so that she can continue to work until she goes into labor. Again, I’m not familiar with Massachusetts law so I don’t want to misspeak here, but hopefully you can get a sense of where to look for help. Also, I have to wonder why the conversation about her accumulated paid leave is only happening now. Not that it’s necessarily unlawful in this case, but common sense and basic courtesy dictates that HR would have initiated this discussion much earlier in her pregnancy — for the benefit of both parties. I’m sorry for your friend and I hope she has a smooth transition into motherhood! Getting ready for birth and becoming a mom is tough enough without the stress of the workplace hanging over your head.

  10. First off, I love this blog despite the fact that I live in New Mexico. I was wondering if FMLA laws differ simply state to state or by insurance carriers? Because what you wrote here conflicted with what I was given for my maternity leave, but I also know women in my state who had different experiences as well.

    1. Thanks for the love Shelly! Yes, there is the federal FMLA and I believe each state has its own version of the law. Just to give you an example, the Connecticut FMLA gives employees 16 weeks of unpaid leave, while the federal law only provides 12. If an individual’s employment situation happens to work out so that both laws apply, she will receive the greater benefits provided under the state law and be granted a total of 16 weeks. In the event of a true conflict, the federal law will be deemed to preempt the state law. But I believe that most state legislatures have enacted versions of FMLA that are carefully crafted so that there are no conflicts. You should definitely review your situation with someone knowledgeable in this area – your HR department may be a good place to start, but even better if you can seek out an attorney or legal services organization – to fully understand what kind of protections and benefits apply to you.

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