Taking and Providing Leave for Pregnancy, Birth, Adoption and Foster Care
It’s not enough to simply have a maternity leave policy in place if you aren’t intimately familiar with the laws that regulate it … laws that can dramatically affect you and your employees. With pregnancy discrimination complaints quickly becoming one of the fastest-growing types of employment discrimination charges filed with the EEOC, it’s more important than ever to know the ins and outs of your policy.
Getting up to speed with the laws that pertain to you and your employees will help you stay afloat in the legal hot water of pregnancy discrimination. But just as important, it will show you how to level the playing field for all your employees, make them feel appreciated and give them incentive to return to work more productive than ever.
Pregnancy and Bonding Leave
Both the mother and the father are eligible for FMLA leave for the birth of their child.
- State law may allow or an employer may permit additional time for bonding leave following the 12-month expiration. This extra time does not constitute FMLA leave.
2. State pregnancy disability laws:
- May provide a period of disability leave before or after the child’s birth
- Are considered leave for the mother’s serious health condition and are not subject to the 12-week combined limit
3. An expectant mother may take FMLA leave before the birth of the child for prenatal care or because her condition makes her unable to work
- The mother is entitled to FMLA leave for incapacity due to pregnancy even if she does not receive treatment from an HCP during the absence and even if the absence does not last for more than three consecutive calendar days (e.g., morning sickness)
4. A spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated or to care for her during her prenatal stage or following the birth of the child if the spouse has a serious health condition
5. Both parents are entitled to FMLA leave if needed to care for their newborn with a serious health condition (If both spouses are employed by the same employer, they must not have exhausted their entitlements during the applicable 12-month leave period.)
6. Intermittent/reduced schedule leave: An eligible employee may use intermittent or reduced schedule leave after the birth of a healthy newborn only if the employer agrees
- If the employer agrees to permit intermittent/reduced schedule leave, the employee can be required to transfer temporarily to an available alternative position for which the employee is qualified and that better accommodates recurring periods of absence
- Such a transfer must comply with a collective bargaining agreement, federal law and state law
7. The employer’s agreement is not required for intermittent leave required by the serious health condition of the mother or a newborn child
8. The employer’s agreement is not required for continuous bonding leave following the birth of the child
Adoption or Foster Care Placement
1. Similar rules to those related to the birth of a child apply to adoption or foster care placement
2. FMLA leave is provided before the actual placement or adoption if an absence is required for adoption or foster care placement to proceed
- The source of an adopted child is not a factor in granting FMLA leave
- Foster care placement, which is defined as 24-hour care for children in substitution for, and away from, their parents or guardian, requires state action
3. The entitlement for FMLA leave expires at the end of the 12-month period beginning at the date of placement
- If state law allows or the employer permits, leave may be taken beyond this 12-month period and does not qualify as FMLA leave
4. The rules applied to spouses employed by the same employer apply to placement or adoptions in terms of a combined total of 12 weeks of leave