Maternity / Paternity Leave

As Millenials begin to wait more and more to have children, we have also seen an uprise in demand for maternity and paternity leave. This is largely in part to the emphasis of relationship and connections that has developed over the last decade. New parents want to establish that connection with their newborns and lets face it, that’s not something you can do in a week. Currently, here is where we stand on that legally.

Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

Pregnant employees may use FMLA leave for prenatal care and for periods when they are incapacitated by their condition (for example, if they are suffering severe morning sickness or their doctor has put them on medically required bed rest). New parents can use FMLA leave to care for and bond with their child. Parental leave is available for biological children, adopted children, and foster children.

Only women may take FMLA leave for pregnancy, of course. However, their spouses may take leave to care for a family member with a serious health condition, if the pregnant woman suffers complications or is otherwise incapacitated by pregnancy and requires care. Parental leave is equally available to men and women; in fact, one of the goals of the law was to make it easier for men to take paternity leave, both to spend time with their children and to share the responsibilities of childcare.

If both parents work for the same employer and are married to each other, they can be limited to a combined total of 12 weeks of parental leave. (This limit doesn’t apply to unmarried parents.) However, leave for a serious health condition is counted separately. For example, if a woman takes four weeks of leave while incapacitated by pregnancy, she and her husband will still have a combined 12 weeks of parental leave to divide as they wish. Because the woman has already taken four weeks of leave, she may not take more than eight weeks of parental leave, which would leave her husband with four weeks off. They could also choose to take six weeks of leave each.

Employees may take intermittent leave — for example, working half days or working only a few days a week — for parenting only with the permission of their employer.

At EPGD Business Law, we take employee rights very seriously. If you’re looking to get some advice as to maternal/paternal leave policies, and the PDA, the FLA, etc, feel free to contact us to schedule a consultation. info@epgdlaw.com / (786) 837-6787