Have you ever noticed how people use the term “cobbled together” when referring to their maternity leave? As in, “I cobbled together PTO, sick leave, maternity leave, and FMLA” to create a leave. It’s no secret maternity leave is complicated in the US. Here are two typical examples, from friends who work for medium sized companies, covered under FMLA. Karen tells me, “You can take 12 weeks of leave with 8 paid in full (aka maternity) and 4 not paid. You can use the STD (Short Term Disability) for the additional 4 weeks *IF* your OB signs off. Mine did, but make sure yours is OK with signing off on it BEFORE you deliver. I had to fight for it and almost didn’t get my 4 weeks paid. She insisted I “wasn’t” disabled as I only had a baby. (I switched OB’s). You might as well use up your PTO, then fill the gap, if any, with STD. Depending on how much time you have left you should be able to cover a lot of it."
Laura, an accountant, writes, “I am in the middle of my leave. My company gave me 4 weeks before my due date and 8 weeks after for a c-section and then I could take another 6 weeks of parental leave plus use any of my vacation time. Once STD runs out, I will start a week of vacay and then the 6 weeks of parental leave. “
Head spinning yet? I decided to find out the rules. And the answer is: it totally depends on where you work, although there are basic protections under the law.
While more than 100 million leaves have been taken under the FMLA since 1993 many workers can’t take full advantage of its provisions because they cannot afford to take unpaid leave. Being paid for your maternity leave, however, is discretionary and based on your employer and state of residence. Only 8% of American workers have paid family leave. The 2008 National Study of Employers found 60% of employers offer 12 weeks of unpaid leave to both moms and dads, and 16% of companies with at least 100 employees provide full pay during maternity leave. 22% of employers offer maternity leave longer than 12 weeks, and 52% offer some sort of paid leave to mothers. Nearly one-quarter (24 percent) of the best employers for working mothers provide four or fewer weeks of paid maternity leave, and half (52 percent) provide six weeks or less, according to an Institute for Women’s Policy Research analysis of data provided by Working Mother Media, Inc., publisher of Working Mother magazine.
I spoke with Paula Brantner, an employment lawyer who runs the non-profit WorkplaceFairness.org, a really great resource. Paula noted the term “cobble,” “really is an apt description of the process, because you have different legal requirements so it really is figuring out, where you are in your pregnancy and how you fit the different requirements.”
I asked, “What advice would you give women legally so they can take as much leave as possible? What’s a framework to look at when you’re thinking of how to structure your leave”?
First, you should know a denial of pregnancy leave may violate Title VII of the Civil Rights Act, the Family and Medical Leave Act, or both laws, depending on whether an employee qualifies for protection under each law and the nature of the employer's conduct, according to Workplace Fairness. Discrimination based on pregnancy is a form of sex discrimination. “Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978 covers many forms of discrimination you may encounter because of your sex in decisions about hiring, firing, work assignments and conditions, promotions, benefits, training, retirement policy and wages. Title VII prohibits employers from treating pregnant women or temporarily physically disabled new mothers differently from other temporarily sick, injured or disabled employees, including discriminatory leave practices.
Maternity leave is usually created from a variety of benefits that include sick leave, vacation, holiday time, personal days, short-term disability (aka SDI, or STD) and unpaid family leave time. Most companies allow you to use your sick, vacation and holiday time towards your maternity leave. Some companies require that you use these benefits first before using any disability or unpaid time.
As strange as it seems, many employers consider maternity leave a disability. Many paid leave terms are funded by short-term disability insurance (SDI). Some companies provide this, and some employers require that you purchase a policy, much as you would another kind of insurance. The average SDI policy pays a portion of your salary. FMLA does not require employers to provide paid leave but it does guarantee job protection while out on maternity leave. The FMLA was updated in January 2009 and the latest provisions are here.
Paula Brantner explains, “When people take leave for pregnancy, there are two kinds of leave: one is disability-based, and one is post-childbirth based. Before you have the baby, as long as you are physically able to work, you will not likely be entitled to any disability related leave. Pre-birth, look at all your potential options between short term disability, PTO, and your employer’s willingness to give you unpaid leave, if you want to take more time off during your pregnancy.
“Post birth, short term disability or your company’s paid maternity leave may continue for an amount of time post-birth (usually six weeks for a vaginal delivery and eight for a C-section). Then, if you work for an employer with 50 more employees within a 75 mile radius, you will qualify for the Family and Medical Leave Act. Usually you take your FMLA and paid leave concurrently: six weeks, say of paid leave and then the remaining six weeks of FMLA. You have to take FMLA leave within a year of the birth, but you could spread it out….Taking concurrent leave is the result of a Supreme Court Case several years ago where an employee took her paid leave and then took the 12 weeks of FMLA and the Court said ‘no, this way employees could cobble together something that lasts years.’ There is some desire to change it back so you don’t have to take concurrent leave, but employers are going to fight that one pretty hard.”
If your employer doesn’t offer short term disability, what do you do? “Well, then you’re in the realm of sick leave. And as you know, we don’t have any federally mandated sick leave, so you are at the mercy of your employer. However an employer cannot treat you differently than any other employee who is sick.
“The law provides a minimum set of requirements that many employers, especially those that want to be family friendly, can often do better. I think the biggest concern most companies have is the number of women who’ve said they are coming back, and they have held the job open, and then the employee does not come back. I think it’s important for employees to be honest with their employers…and for example, they [employers] can ask you to pay back, say your benefits, if you don’t return. “ I think it’s important to involve your employer as early as is feasible…you don’t want a situation where rumors are flying around the workplace and the employers feel they are the last to know. Come to them with a plan to ensure any many projects will get taken care of.”
What about if you’re planning on asking for extra unpaid leave, when should you ask for that? Paula said, “That’s a strategy question that depends on your relationship with your employer and the nature of your work. Is your employer going to feel blindsided if you don’t tell them before? How are the negotiations going? If they are going great, you might want to lay it all out on the table. If it’s not going so great, you might want to introduce flexible arrangements in stages.
“It really pays to have a strategy for how you’re going to plan your leave. Know your rights, in terms of what you can cobble together, what you want to do before, and after. And also how the work is going to get done. Larger employers are much more used to this. But in a smaller employer, you’re going to have a bigger impact. So if you’re in a small employer where you don’t have any rights to unpaid leave under the FMLA that can make it kind of challenging. Those are the workplaces that are the most difficult to navigate. And frankly in this market, given the amount of people who are unemployed, there are undoubtedly going to be some employers who say, “the law doesn’t require me to keep open this job” and I’m going to hire someone else. And as long as that’s the same attitude they have for any employee who is disabled, the law doesn’t protect you. Although an employer who is at that vindictive will probably get theirs anyway.”
One can hope.
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