Maternity Leave and FMLA Breakdown

Jan 28

Maternity leave is the time a mom takes off of work to have a baby or adopt a child, recover from childbirth, and bond with their new child.

Whenever someone is pregnant, there is always talk about maternity leave and confusion about what it is. There’s a lot of information to be aware of when it comes to your rights. Let’s break it down!

Most companies’ maternity leave, paternity leave, and parental leave policies fall under the Family Medical Leave Act (FMLA). As a mom, you may already be familiar with FMLA if you’ve taken maternity leave before or if you’ve had to use FMLA for some other reason in the past, but FMLA is a beast and there is still a lot of uncertainty and misconceptions about it.

It’s super important for women to understand FMLA even if they don’t plan on needing maternity leave because women disproportionally take on the role of caregiver for family members — meaning they will most likely need to use FMLA throughout various stages of their life. Here is a brief rundown of what FMLA actually is and clarification on some common misconceptions.

Below is general information regarding FMLA and maternity/paternity leave policies. The purpose of this information is to provide a better understanding of what is commonly a confusing topic for employees, but it is in no way legal advice or a guarantee that your specific situation qualifies you for FMLA. If you have questions about your own situation or if you think that your parental leave rights are being violated by your employer, I encourage you to reach out to a labor law attorney or to the U.S. Department of Labor.

What is FMLA?

In a nutshell, FMLA protects your job for up to 12 weeks while you are out for your own medical needs or are serving as a caretaker for an eligible family member (spouse, child, or parent). This is the part of FMLA that covers maternity and paternity leave. So, you go on leave, and then when you come back and you are able to go back to your same job or a job of equal standing (similar skillset, equal pay and benefits, and equal employment terms) because of FMLA (https://www.dol.gov/agencies/whd/fact-sheets/28-fmla).

If you are the caretaker for an eligible servicemember (spouse, child, parent, or next-of-kin), then FMLA provides you with up to 26 weeks of protected leave in order to take care of that servicemember.

FMLA falls under the U.S. Department of Labor and is typically administered by an employer’s Human Resources (HR) department.

What type of employers have to comply with FMLA?

1. public agencies

2. schools

3. private sector employers that have 50 or more employees for 20 or more workweeks in the previous or current calendar year.

Who is eligible for FMLA?

Anyone whose employer falls under one of the above-mentioned categories, who works at a location where the employer has 50 or more employees within 75 miles and has worked 1,250 hours during the previous 12 months from the start of leave is eligible for FMLA.

Now, this is important to note – if you work for a private sector employer that has less than 50 employees for at least 20 workweeks in the previous or current calendar year, or you have not worked 1,250 hours for your employer during the previous 12 months, you are not eligible for FMLA.

That’s not to say that you won’t be able to take maternity leave. But it does mean that your leave is not guaranteed and protected under the law and that your employer is not required to promise a certain amount of time off or to ensure that your job will be available to you when you’re ready to return to work.

This is obviously a big deal, so in this case, my advice is to do what you can in the situation that you’re in. Research your options, prepare yourself, and communicate. I give this advice as general guidance, assuming that you have a reasonable employer. I know nothing of your specific situation, workplace culture, or the nature of your relationship with your supervisor, so use your discretion here to make the best decision for you.

If your employer has an employee handbook (theoretically they should, but many small employers don’t), check there first to see if a specific maternity leave policy is outlined. If there is, then you’ll need to follow that policy. If not, look at the general time-off policy, because at the very least, your ability to take time off will fall in line with this policy.

Next, whether or not there is an employee handbook, talk with your boss about needing to take time off and see how they’re willing to help. Again, use your discretion here. This might be a sticky situation for some. I don’t know your supervisor or your workplace.

If you have a supportive and reasonable supervisor, then there are probably no concerns about having this conversation. But if the workplace culture is not supportive and it's negative in nature, and you do not qualify for FMLA, then know that your rights are limited and this conversation may not be a great one.

Some small employers (not all, but some) are willing to provide the time if they’re able to, even if they don’t have a policy and even if you don’t have paid time off to cover the full amount you’re wanting to take. If they are willing to work with you, that’s great! Just keep in mind that you’re basically at their mercy, and their willingness or ability to accommodate you may be circumstantial.

For a small company with less than 50 employees, one person being gone for an extended period of time is a bigger deal than it is at a larger company because they don’t necessarily have the money to pay for a temporary employee through a temp agency, and they don’t have as many employees available to cover your job responsibilities. That’s also assuming that you’re the only employee who needs to take leave at that time, which may not be the case.

For example, if another employee needs to take time off because of a medical condition that is going to cause them to not be able to work at all for an extended period, your employer may not be able to grant you the time off, even if they want to. It also may depend on the season. If certain seasons are busier for your employer than others (for example, summers or holidays), then that may also affect their decision.

Now that we have a better understanding of maternity leave and FMLA, let’s talk about what people commonly get wrong about FMLA and clear up some misconceptions.

Does FMLA pay you?

No. This is the biggest misconception I have come across with employees. FMLA guarantees you the time off and protects your job while you are out. So, when you come back, your job or a job of equal standing will be available to you.

What pays you is sick time/vacation time/PTO (paid time off) and short-term disability, if you have it. If you don’t have these things, then your FMLA leave will be unpaid.

Does my supervisor have the right to know that I have applied for FMLA?

No, unless your supervisor happens to be the one that your employer designated with overseeing the company’s FMLA program. You do not need to tell your supervisor that you are applying for FMLA, and your supervisor should not be initiating conversations with you about it if you have not disclosed any information to them on your own.

If your FMLA application has been approved, Human Resources will have to let your supervisor know that you have approved leave; however, your supervisor is not entitled to know the reason you are taking FMLA. Any communication regarding your FMLA should come from HR, or whomever your employer has designated to manage their FMLA program should they not have an HR department.

(if you’re concerned about being discriminated against due to being pregnant, you should check out this blog post!)

Can my supervisor contact me while I am out on FMLA?

Your manager/supervisor should not contact you during your leave. If they have a legitimate business need to communicate with you during your leave that cannot wait until your return, they should inform HR and HR will contact you.

Who has access to my FMLA application?

Human Resources, or whomever your employer has designated to manage their FMLA program should they not have an HR department. Your FMLA application, whether approved or not, is confidential.

My employer is requiring my physician to certify my FMLA application. Does this violate my rights under HIPAA (the Health Insurance Portability and Accountability Act of 1996)?

No, as this is how your employer confirms that your circumstance qualifies for FMLA. The FMLA application, which is created by and comes directly from the U.S. Department of Labor, actually has a section for your physician to answer questions regarding your condition where the doctor specifies how much time you’ll need off and for what.

What would violate HIPAA and employee confidentiality is if that confidential documentation, or the information in the documentation, were shared with anyone who is not involved with the oversight of your employer’s FMLA program.

Does FMLA cover a father’s time to bond with and care for his newborn or newly adopted child (paternity leave)?

Yes. FMLA for the birth and bonding of a newborn or the placement of a foster/adoptive child applies to fathers and can be taken within 12 months of the birth/placement. This leave would come from the father’s employer, though, not the mother’s employer. If both parents happen to work at the same employer, the amount of leave granted is still a non-issue because FMLA is based on each individual employee and not based on the event in question.

One key difference between maternity leave and paternity leave is the qualification of short-term disability. If a mom has short-term disability through her employer, then that would kick in during her maternity leave if she birthed the child. This is because short-term disability covers the inability to work due to a medical condition or procedure. So…that means that even if the father also has short-term disability through his employer, he would not qualify to receive short-term disability payments during his paternity leave since he did not give birth.

This is important to financially plan for, and can actually make a difference in fathers being able to take all or some of their paternity leave. If the father has vacation or paid time off (PTO), he will be able to use that during his leave. But most employees don’t have 12 weeks (the time granted under FMLA) worth of time off available (unless their employer has a very generous time off policy). So, each family would have to decide if they would be able to afford for the father to take all or some of the paternity leave.

Whew! That’s a lot of information. Let’s recap what we just went over!

Maternity leave, paternity leave, and parental leave are covered under FMLA if the employer meets the FMLA requirements AND if the employee has worked at least 1,250 hours for that employer in the previous 12 months from the day when FMLA is needed.
FMLA protects your job while you are out on leave.
FMLA does NOT pay you while you are on leave.
If your employer is required to comply with FMLA for eligible employees, but you have not worked at least 1,250 hours in the previous 12 months, you do not qualify for FMLA.
Employers will sometimes have separate parental leave or personal leave policies apart from an FMLA policy for employees who do not qualify for FMLA. You will need to check your company’s employee handbook for more information on that.

You can find more specific information regarding FMLA at the Department of Labor’s website (https://www.dol.gov/agencies/whd/fmla).

Gayle Guthrie