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FMLA on Pregnancy Leave
The Family and Medical Leave Act (FMLA) includes the provisions that govern the federal government’s understanding of maternity leave. The minimum rules guarantee that an employee may take “job-protected, unpaid leave for absences due to the birth of the employee’s son or daughter and the care for the newborn child." This leave is capped at 12 work-weeks within any one 12-month period.
Even though maternity leave is unpaid, the employee has the option of applying accrued paid leave -- i.e. vacation time, personal time or sick days -- to the 12 weeks. While on leave, it is the employer’s expressed responsibility to maintain the worker’s group health coverage that was in effect on the day the employee took her leave.
It is crucial to recognize that the provisions do not apply equally to all workplaces. In addition, workers must qualify for FMLA coverage to enjoy the benefits set forth by the Department of Labor.
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Who Is Covered?
- Companies are covered by FMLA regulations if they employ 50 or more workers.
- A company may be excluded from FMLA provisions even if it has more than 50 workers, as long as less than 50 employees are “within 75 miles of the worksite."
- The worker applying for maternity leave under the auspices of FMLA coverage must have been employed at the business for a minimum of 12 months.
- Prior to applying for leave, the employee must have worked at least 1,250 hours in the 12 months prior to the anticipated leave date.
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It is a common misconception that the employer must keep the worker’s job open for her until she returns. This is not necessarily true. FMLA rules stipulate that the returning employee must be reinstated “to the same or an equivalent job." The caveat that the business must observe is the equivalency of salary, benefits and terms of employment.
For example, an employee who held the position of a supervisor or team lead must be given the same type of position and job title. If she worked during the day, it would not be in keeping with the spirit of the FMLA rules to place her into an open night shift position. The only way that this transfer may be made is upon the express request of the worker.
Of course, many a business recognizes that it is less expensive to hire a temporary worker or cross-trained employee to fill the vacancy. After all, to permanently fill the temporarily open position with a new-hire, who needs training and will undoubtedly experience a learning curve, will most likely exceed the 12 weeks of the worker’s anticipated absence. It is in a company’s best interest to reinstate the returning employee into her area of expertise.
Another point of contention is the application for maternity leave by a worker not eligible for FMLA coverage -- usually because she has not met the 12-month eligibility requirement. The federal government specifies that because of a separate piece of legislation -- the EEOC’s Pregnancy Discrimination Act -- this worker “may not be denied maternity leave if the employer normally provides short-term disability benefits to employees with the same tenure who are experiencing other short-term disabilities."
The seasoned human resources manager must undertake a records review to verify whether a precedent has been set, which would entitle a short-term employee to maternity leave privileges. Moreover, it is crucial to remember that the EEOC applies Pregnancy Discrimination Act provisions to companies with only 15 employees. The 50-worker cut-off that the FMLA specifies does not apply in this case.
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Did You Know …?
Moms-to-be have some flexibility under federally mandated maternity leave law. For example, the proscribed 12 weeks do not have to be taken all at once. Instead, the worker may choose to take off some time before the birth of the child and also some time thereafter. The company may not deny these leave requests.
That said, a company does have the right to require the worker to apply unused sick time to cover some of the time off. The business may not ask the worker to use accrued vacation time, although the employee has the right to do so, if she desires.
The worker must apply for FMLA benefits approximately 30 days before anticipating the first day of leave. Employees must provide proof of eligibility, which may include a physician’s note.
Further regulations for maternity leave have been set selectively by state governments. They do not diminish the federally guaranteed rights, but instead augment them and occasionally greatly enhance them. The National Partnership for Women & Families details the regulations set forth by the various states. For example, private sector Connecticut companies that have at least 75 employees must grant “16 work-weeks of leave during any 24-month period for birth, adoption or placement of a foster child." Oregon grants moms 12 weeks of FMLA for childbirth and recovery, as well as another 12 weeks of “job-protected parental leave" to care for a newborn.
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It is evident that the human resources manager must be up to date not only on federal maternity leave law and anti-discrimination regulations, but also on state-mandated and enforced parental leave rules. Do not get caught unaware and discriminate against a pregnant worker or new mother!
- Department of Labor, http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=21763
- EEOC, http://www.eeoc.gov/facts/fs-preg.html
- National Partnership for Women & Families, http://www.nationalpartnership.org/site/DocServer/ParentalLeaveReportMay05.pdf?docID=1052
- Photo Credit: “NPS symbol” by NPS/ ZyMOS/Wikimedia Commons via public domain