What is Maternity Leave?
You've heard the term, of course, but what exactly is it?
Unless you’ve already been through maternity leave, the specifics might be a little hazy. We’re here to help clear things up.
Maternity leave is the period of time when a mother stops working because she is about to have — or has just had (or adopted) — a baby. While we most commonly hear the term “maternity leave,” sometimes, it’s called:
- Family leave
- Family medical leave
- Pregnancy leave (or parental leave or paternity leave, because it may apply to not only birth mothers, but also to adoptive mothers, fathers or domestic partners)
Your workplace may or may not have an official maternity leave policy, and even if it does, it unfortunately may not be paid. If it is paid, that doesn’t necessarily mean it’s fully paid; some companies offer partially paid leave or a program that may technically be a sick leave or short-term disability policy that pays you during your leave of absence.
How Long is Maternity Leave?
The U.S. does not have a standard maternity leave length. A recent study by the Society for Human Resource Management (SHRM) found that 60% of employers give 12 weeks of maternity leave; 33% give more than 12 weeks. However, that includes paid and unpaid leave. Only 58% of companies pay a salary or wage during some or all of maternity leave, according to the study.
What Maternity Leave Rights Do I Have?
Getting informed about your maternity leave rights is particularly important if you live in the United States and are a pregnant employee. Why? Unlike women in virtually all other developed countries in the world, American women working in the U.S. who take maternity leave are not guaranteed any maternity leave benefit payments from the federal government.
In fact, most American women receive no pay during their maternity leave and instead rely on federal parental leave law (called the Family and Medical Leave Act, or FMLA) to protect their job for up to 12 weeks after childbirth or adoption. This essentially means that the woman is entitled to return to her position after a period of medical leave or absence without penalty in pay or position.
To be clear, FMLA does not guarantee a woman paid leave, and it doesn’t apply to every person. FMLA protects you if you work at a company with more than 50 employees within 75 miles of your workplace and you have worked there for a minimum of 1,250 hours during the prior year. If you have a spouse working at the same company, and he or she also tries to qualify for leave under FMLA, things are more complex. You'll want to read up on FMLA rules and exceptions.
In addition to checking out whether you are an eligible employee for FMLA maternity leave, see whether you live in one of the 25 states that have supplemented FMLA protections either by extending the length of maternity leave (up to 16 weeks), lowering the minimum employer size to below 50, or even requiring private employers to pay for maternity leave (up to some cap).
Still, with the exception of three states — California, New Jersey and Rhode Island — state maternity leave, or more accurately, state-protected parental leave is still unpaid leave. Four states have disability laws that cover a woman's pregnancy and the birth of a child, and you can learn about those states' laws here: New York, New Jersey, Hawaii and Rhode Island.
While the specifics vary by state, these disability laws typically protect an employee's salary (usually partially, and up to a certain maximum cap) by requiring employers to take out short-term disability insurance policies that cover a woman's wages during her leave of absence. If you want more detail on your state’s maternity leave laws, the National Conference of State Legislatures' state family and medical leave laws is a good place to look.
What Is My Company’s Maternity Leave Policy?
If you’re lucky, you may be employed by one of the private employers that funds paid maternity or family leave programs (meaning they send you a paycheck during your maternity leave just as they do during your vacations and paid holidays). However, according to a report by Families and Work Institute in 2008, only 16% of companies offered fully paid maternity leave; in 2016, in a survey of employers with 50 or more employees, only 6% offered full pay during maternity leave.
Fairygodboss has crowdsourced maternity leave policies for thousands of companies, using information that our members provide. The majority of women who have left tips on our site say they get between 6-12 weeks of full pay. But some companies pay less, and others pay up to 18 weeks of your full salary and benefits.
Maternity leave policies typically apply equally to all female employees across the company, though some unionized or contract employees may not receive these benefits.
If you're unhappy with your employer's maternity leave policy, you can always try to negotiate for more leave. It doesn't hurt to ask for more time off or for some pay during your leave, even if you’re requesting something that’s not part of your company’s official policy. When you make your case, it may help to arm yourself with facts: do some research in advance to show your employer what others offer.
What is the Difference Between Maternity Leave and Short-Term Disability?
In case these details surrounding maternity leave law and rights aren’t enough of a jumbled mess, don’t worry! It gets even more confusing (sorry). But stay calm — we’ll help you sort through it. As we mentioned above, some companies and employees say they offer (or receive) paid leave when they are technically offering (or receiving) Short Term Disability insurance payments that define "disability" to include pregnancy disability covering childbirth and postpartum recovery. This confusion of terms is understandable.
Some STD insurance policies pay for 100% of a woman's salary during maternity leave and are paid through insurance premiums covered by the employer. But other STD policies require the employee to foot the bill and/or to purchase those policies before the employee becomes pregnant. And, of course, it’s not unusual for an STD policy to cover only a portion of an employee's salary during their leave.
Many unions and large employers offer STD insurance policies, and some feel that it is not appropriate to call even fully employer-funded policies "maternity leave," because pregnancy is not a "disability" and thus doesn't necessitate a disability leave. Practically speaking, there are additional hoops an employee must jump through to take advantage of STD-based policy benefits.
Unlike company-provided maternity leave, STD policies require you to get a medical diagnosis or medical certification from a healthcare provider; you’ll probably need to provide your company with certain documentation from your physician before you will start to receive STD payments. And once you apply for these benefits, there may be a waiting period before you’ll start to receive payments.
How Long and How Much Does Short-Term Disability Pay?
Many STD insurance policies cover 50-100% of your salary for approximately 6 weeks of postpartum absence, though some may pay out longer if you experience medical complications or have had a C-section. The amount of STD pay you receive depends on your company's specific policy and is typically based on your tenure at the company and is a completely separate issue from your healthcare benefits and coverage.
If your company pays less than 100% of your salary for STD, the only way you may receive 100% salary coverage is to personally supplement your employer's insurance premium payments (which some employer insurance plans allow). If this is not possible via your employer's insurance company, you may have to purchase a supplemental policy from another insurance company.
Usually, though, you’ll have to start paying for STD insurance before getting pregnant. STD insurance policies are as varied as any insurance policy, and some require you to use your sick time or vacation days before you can start receiving payouts. STD plans often demand that you be physically absent from your workplace for a week before you can begin receiving benefits.
In short, all of this stuff can be pretty damn confusing. If you’re feeling like everything from the language to the fine print is daunting, you’re not alone — and you should ask your company's HR and benefits department for all the details. Don't be afraid to include all your nitty gritty questions!
Can I Take Both Paid and Unpaid Maternity Leave?
If you're lucky enough to receive paid maternity leave, your paid leave and FMLA run concurrently — meaning that the time you take off for paid maternity leave counts toward your 12-week FMLA protection. We've already mentioned that federal and state laws may protect your job with unpaid maternity leave. But some companies offer unpaid leave policies on top of their paid leave or STD-supported maternity leave.
This corporate unpaid leave may even extend beyond the 12-week minimum protected under FMLA. Even if your company doesn't offer you additional unpaid leave, you might still qualify for additional unpaid leave under federal or state law. Under certain state law provisions, you may take additional time off regardless of how much paid corporate maternity leave you've taken.
Do I Pay Taxes on Maternity Leave or Short-Term Disability Payments?
Yup. Maternity leave pay funded by your employer is no different than your paycheck — so you will have to pay taxes on it just as you would on your regular salary. Similarly, if you receive disability benefits from your employer who has been paying insurance premiums, that is a taxable benefit. But if you’ve been paying for the disability insurance yourself, the benefits you receive are tax-free.
When Do I Have to Go Back to Work?
In case it’s not already obvious, here’s the deal: every woman faces a patchwork of applicable laws and policies that may pay for (a) none, (b) some of, or (c) all of her maternity leave for (a) none, (b) some of, or (c) all of the time she wants to take off for the birth of her child. Moreover, some women may choose to be a part-time worker on a paid basis instead of as a full-time employee which complicates the calculation of what she is paid. If you choose to work part-time, voluntarily in an uncompensated way during your leave, this is your choice and should not affect any maternity payments you receive from your employer. However, if you work "officially" in any way, this may impact your short-term disability payments since those funds received are predicated on your being unable to work.
That means there’s no easy answer; your return-to-work timing depends on your finances, personal choices, and the leave policies and laws that you're subject to. It also depends on the demands of your job and what kind of work-life balance you seek. If you want to extend the time you're on maternity leave, you should consider saving up personal, sick days and vacation or Paid Time Off (PTO) allowances you've built up prior to having your baby.
What If I Decide Not To Go Back to Work?
Some of you might choose not to return to work after your maternity or short-term disability leave — which is totally understandable! In some cases, you may have to pay back a portion of your benefits, so just make sure you ask your HR department for the fine print before you make this decision.
What If I Get Fired While I’m Pregnant or on Maternity Leave?
Being fired sucks under any circumstances, but it’s particularly challenging when you are pregnant or on maternity leave. If you think a law may have been broken and that you have experienced pregnancy discrimination, be sure to consult an attorney about your options.
For reading and research on your rights, you may want to start with the U.S. Equal Employment Opportunity Commission (the EEOC) website. It describes your protections under the Pregnancy Discrimination Act (PDA) and other applicable federal laws and also provides resources and contact information.
Do I Receive Benefits While I'm on Maternity Leave?
If you qualify for FMLA leave, yes — your company must continue to keep you on its health insurance plan while you're on leave. But the company has the legal right to ask for the reimbursement of your health insurance premium payments if you do not return after your FMLA leave.
Also, keep in mind that FMLA doesn't require employers to allow you to accrue benefits or time toward seniority when you're out on leave. That means the clock may stop on things like vacation accrual and the amount of time you can say you've been with the company in order to qualify for things like raises based on seniority, participation in your company's 401k plan or the vesting of your company's matching investment, or stock options.
Finally, you won't be able to contribute to your 401k or flexible spending account while you're on leave because you're not receiving a paycheck from your employer — which means you can't contribute pre-tax dollars.
Most companies that offer fully-paid maternity leave (not through STD policies) also pay to cover your other employment benefits during this period.
What if I Believe My Employer Has Violated Certain Rules or Laws?
We can't give legal advice, but we can tell you that it depends on which rules you believe your company has broken and which laws have been violated. There are also nonprofits — like Equal Rights Advocates, 9to5.org, and National Partnership for Women & Families — that may give you guidance and more information about your rights.
You might also want to consult with an attorney before making any decisions. If your issue is regarding FMLA leave, you may file a complaint with the Wage and Hour Division of the Department of Labor.
What if I'm Adopting a Child or Taking in a Foster Child?
Some employers offer adoptive parents policies identical or similar to those given to birth parents. But one big difference may come with companies that pay for maternity leave through STD policies — because adoption will not typically qualify under the definition of those insurance policies. Under FMLA, you’re allowed to take 12 weeks of unpaid leave. And again, certain states do provide a parental leave policy.
When and How Should I Request Leave?
This is largely a personal decision. Under FMLA, you are required to request maternity leave with at least 30 days of advance notice. Realistically, though, most women become visibly pregnant after just a few months, so many decide to tell their employer after their first trimester, when the risks of miscarriage are significantly reduced.
Need some advice on spilling the beans to your boss and co-workers? Check out our tips on how to tell your boss you’re pregnant.
How Do I Decide When to Start My Leave?
For most women, this is a personal decision. Legally, if you are using FMLA leave, you may take time off at any time during your pregnancy or even after childbirth (within 1 year of your child's birth). Some women work right up until they go into labor — but if the thought of having your water break at work terrifies you, you’re not alone. Many women decide to start maternity leave before giving birth!
You’ll also want to consider your finances and the amount of physical labor or stress your job entails. If you decide to take an early maternity leave due to medical complications or because of your doctor's advice, you will typically be able to receive short-term disability payments starting at that point.
Do Fathers Get Parental Leave?
Under FMLA, both men and women are eligible for up to 12 weeks of unpaid time off due to the birth of a child, or when adopting or taking in a child from foster care. Parents — both men and women — are eligible for this leave within one year of welcoming a new child.
Some companies might offer more extensive paternity or family leave for expecting fathers, but these policies vary by company.
We hope this helps! But we know this stuff is confusing, so if you have questions about anything we covered — or didn’t cover — don’t be shy. Email us at [email protected], or post your question on our maternity leave discussion board page, where the Fairygodboss community will be able to chime in with advice!