Maternity leave refers to the period of time that a new mother takes off from work following the birth of her baby. Many companies have similar policies for fathers which allow for paternity leave, and together, maternity/paternity leave is sometimes referred to generally as “parental leave.” Today, existing federal and state laws can make granting parental leave a complicated process. The two most notable laws that every employer should be aware of are the Pregnancy Discrimination Act and the Family and Medical Leave Act.
The Pregnancy Discrimination Act
Passed in 1978, the Pregnancy Discrimination Act makes it illegal to discriminate against someone because of pregnancy, childbirth or 
a related medical condition. Under this law, which applies to companies employing 15 or more people, an employer cannot refuse to hire, fire or treat differently from other employees any pregnant employee. Specifically, the law states:
- An employer cannot fire an employee because she is pregnant.
- An employer cannot force a pregnant employee to take mandatory maternity leave.
- A pregnant employee must be granted the same health, disability, and sickness-leave benefits as any other employee who has a medical condition.
- A pregnant employee must be given modified tasks, alternate assignments, disability leave, or leave without pay (depending on company policy).
- A pregnant employee is allowed to work as long as she can perform the job.
- A pregnant employee is guaranteed job security during maternity leave.
- During maternity leave, the employee continues to accrue seniority and remains eligible for pay increases and benefits.
Although the Pregnancy Discrimination Act offers many protections, if a company doesn’t provide job security or benefits to other employees, it doesn’t have to provide them to a pregnant employee.
The Family and Medical Leave Act (FMLA)
Passed in 1993, the Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave for specified family and medical reasons – and includes maternity/paternity leave. Eligible employees may take up to 12 workweeks of leave during any 12-month period for certain family and medical reasons and up to 26 workweeks of leave during a single 12-month period for military caregiver leave. FMLA applies to companies that employ 50 or more people. The law also covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the “50 employee” test.
Eligibility Requirements
Employees are eligible if they have worked for a covered employer for at least 12 months (which do not have to be consecutive), have 1,250 hours of service during the 12 months immediately before the date FMLA leave begins, and if at least 50 employees are employed by the employer within 75 miles.
Basic Leave Entitlement
FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:
- Incapacity due to pregnancy, prenatal medical care or child birth
- Care for the employee’s child after birth, or placement for adoption or foster care
- Care for the employee’s spouse, son, daughter or parent, who has a serious health condition
- A serious health condition that makes the employee unable to perform the employee’s job
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation. Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member (Military Caregiver Leave)
To learn more about FMLA, download HR Knowledge’s free FMLA Guidelines.
The Massachusetts Maternity Leave Act (MMLA)
In addition, each state may provide maternity protections above and beyond FMLA. For example, a Massachusetts-based employee may be entitled to maternity leave under the Massachusetts Maternity Leave Act (MMLA), which was developed by the Massachusetts Commission Against Discrimination (MCAD). The MMLA provides eight weeks of job-protected leave to full-time female employees who have completed their initial probationary period and it requires employers to restore a female employee who takes no more than eight weeks of leave for the purposes of giving birth or adoption to her previous or similar position with the same status, pay, length of service credit, and seniority. More information is available at http://www.mass.gov/mcad/maternity1.html.
Paternity Leave
It is also worth noting that that both MCAD and the EEOC have ruled in favor of fathers receiving paternal leave on more than one occasion and that most employment attorneys and human resource professionals encourage employers to offer “paternity leave” to male employees in addition to maternity to female employees. The issue of paternity leave is likely to become more prevalent in light of the legalization of same-sex marriage in many states.
Every company should have a formal maternity leave or parental leave policy. By establishing such a policy, employers improve employee retention, increase productivity and help protect the company against discrimination lawsuits. HR Knowledge is available to assist you in developing a maternity leave policy. Please contact us at hr@hrknowledge.com.
This content is provided with the understanding that HR Knowledge is not rendering legal advice. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the state or municipality. The material is made available for informational purposes only and is not a substitute for legal advice or your professional judgment. You should review applicable law in your jurisdiction and consult experienced counsel for legal advice. If you have any questions regarding this advisory, please contact HR Knowledge at 508-339 1300 or e-mail us at HR@hrknowledge.com..