Maternity Leave 101: Basic Things You Should Know

maternity leave

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 What is maternity leave?

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.  Sometimes this is called family leave or parental leave because it may apply to both mothers, fathers, or domestic partners.  A company may or may not have an official maternity leave policy, and maternity leave can either be paid or unpaid.  If it is paid, it may be fully or partially paid, and may technically be a short-term disability (STD) policy that pays you during your leave of absence.

What maternity leave rights do I have?

Unlike women in virtually all other developed countries in the world, American women who take maternity leave do not receive any payments from (or guaranteed) by the federal government. Instead, most American women receive no pay during their maternity leave and rely on federal law (called the Family and Medical Leave Act or FMLA) to protect their job for up to 12 weeks after a birth or adoption. This means that the woman is entitled to return to her position after a period of absence without penalty in pay or position.  To be clear, FMLA does not guarantee a woman paid leave.  Also, FMLA does not 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 a minimum of 1,250 hours during the prior year.  There are a couple more requirements that must be met to receiving FMLA protections (e.g. if you have a spouse working at the same company who also tries to qualify for leave under FMLA things are more complex).  You can read more about FMLA rules and exceptions here.

In addition to federal law, 25 states have supplemented FMLA protections by providing either longer leave (e.g. 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).  However, with the exception of 3 states (California, New Jersey and Rhode Island), state-protected maternity leave is still unpaid leave. 4 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 STD insurance policies that cover a woman's wages during her leave of absence.  For more detail on maternity leave laws on a state-by-state basis, see more here.

What Is my company’s maternity leave policy?

Approximately 16% of private employers fund paid maternity leave programs. In other words, these companies send you a paycheck during your maternity leave just as they do during your vacations and paid holidays.  Fairygodboss has crowdsourced a range of corporate policies for thousands of companies from our members.  For most women, this looks like it means between 6-12 weeks of full pay.  However, some companies pay less and others have been known to 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.

What is the difference between maternity leave and short-term disability?

To make matters more confusing, some companies and employees say they offer (or receive) paid leave when they are technically offering (or receiving) STD insurance payments that define "disability" to include childbirth and postpartum recovery. This confusion of terms is understandable. Some STD insurance policies pay 100% of a woman's salary during maternity leave and are paid through insurance premiums covered by the employer. Other STD policies, however, require the employee to foot the bill, and/or to purchase those policies before the employee becomes pregnant. Finally, it is not unusual for a 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". Practically speaking, there are additional hoops an employee must jump through to take advantage of STD-baed policy benefits. Unlike company-provided maternity leave, to receive STD payments, a medical diagnosis is involved and you will typically need to provide your company with certain documentation from your physician before you will start to receive STD payments. There may also be a waiting period between your application for those benefits and when you 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 will receive depends on your company's disability insurance policy, and is typically based on your tenure at the company.

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. Typically, however, you have to start paying for STD insurance prior to 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 may start receiving payouts. Another common feature of STD plans is that you must be physically absent from your workplace for a week before you may begin receiving benefits.  In summary, STD insurance and coverage can be confusing.  Everything from the language to the fine print is pretty daunting, so ask your company's HR and benefits department for all the details and 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 counts towards your 12 week FMLA protection. We've already mentioned that federal and state laws may protect your job with unpaid maternity leave.  However, 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 (e.g. after a 4 week paid or partially paid maternity 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 irrespective of how much paid corporate maternity leave you've taken.

Do I pay taxes on maternity leave or short-term disability payments?

Maternity leave pay funded by your employer is no different than your paycheck so you will have to pay taxes on it 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. If, however, you have been paying for the disability insurance yourself, the benefits you receive are tax-free.

When do I have to go back to work?

As you've seen from our explanation of government and corporate benefits, every woman faces a patchwork of applicable laws and policies that may pay (a) none, (b) some or (c) all of her maternity leave for (a) none, (b) some or (c) all of the time she wants to take off for the birth of her child.  Therefore, when you decide to go back to work depends on your finances, personal choices, and the leave policies and laws that you're subject to.  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 childbirth.  

What if I decide not to go back to work?

Its a difficult decision, but some women choose not to return to their employer after their maternity leave or short-term disability period. In some cases, you may have to pay back a portion of your benefits so you should ask your HR department for the fine print before you make this decision.

What If my employer fires me while I’m pregnant or on maternity leave?

While being fired is difficult enough, its particularly challenging when you are pregnant or on maternity leave.  If you believe a law may have been broken, the best course of action is 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.They describe your protections under the Pregnancy Discrimination Act (PDA) and other applicable federal laws, and also provide resources and contact information.

Do I receive benefits while I'm on maternity leave?

If you qualify for FMLA leave, your company must continue to keep you on its health insurance plan while you're on leave. However, 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, 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 and thus can't contribute pre-tax dollars. Most companies that offer fully-paid maternity leave (i.e. 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?

While we can't give legal advice, the short answer is that it depends on which rules you believe they have broken and which laws have been violated.There are also certain non-profits that may give you guidance and more information about your rights.The following non-profit organizations may be able to provide you further assistance and access to resources:

You may 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 will offer adoptive parents identical or similar policies as those given to birth parents. One big difference may be 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 are allowed to take 12 weeks of unpaid leave. And again, certain states will offer you some sort of parental leave.

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 advance notice. Realistically, however, most women start being visibly pregnant after just a few months and decide to tell their employer after the first trimester, when the risks of miscarriage are significantly reduced. Telling your boss and coworkers that you are pregnant can be very difficult. We have written an article about how to tell your boss you are pregnant, which you can read here.

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 whereas others decide to start maternity leave before giving birth. The other two factors are 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 STD payments starting at that point.

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