Once the daycare arrangements are made and a copy of “What to Expect When You’re Expecting” lands soundly on the nightstand, the next call is to HR – “What maternity/paternity leave am I entitled to?" I get many questions from business owners anxious to be sure that they are providing the appropriate amount of leave to their employees. Below, I tackle some of the most common questions on maternity/paternity leave posed to me:

What maternity/paternity leave are employees entitled to?

Well, unless you are Netflix (one year leave!) - the types of maternity/paternity leave an employer must offer depends on the size of the business and the laws of the particular state.  As it pertains to federal law, employers with 50 or more employees must afford their employees with medical leave as guaranteed by the Family and Medical Leave Act (“FMLA”).  Under the FMLA, an eligible employee is entitled to up to 12 weeks of job-protected, unpaid leave during a 12 month period.

In addition to the protections offered by the FMLA, state laws may have a more generous maternity/paternity leave law in place.  For example, Tennessee has in place the Tennessee Maternity Leave Act, under which any employee working for a business with 100 or more employees is eligible for up to four months of job protected leave for childbirth, pregnancy, or adoption.

What if the employer has less than 50 employees and there is no state law on maternity/paternity leave that applies?

If not covered by the FMLA or another state or federal protection, it is in the employer’s discretion to set maternity/paternity leave policies.  Of course, even without leave guarantees, an employee may be entitled to certain other protections as a new parent. For instance,  under the Pregnancy Discrimination Act (“PDA”), which kicks in at the 15 employee threshold, an employer cannot discriminate against an employee because she is pregnant.

For businesses with less than 15 employees who fail outside of the FMLA, PDA, and Title VII – it is up to the employer to decide on and implement their own maternity/paternity leave policy. Generally, employers appreciate that maternity/paternity leave is an expected benefit for employees and, even if not covered by law, will provide the physician recommended 6 weeks of leave.

About the FMLA – discuss employee eligibility - what if leave was taken earlier in the year; is it paid?

An employee is “eligible” for medical leave under the FMLA if the following conditions are met:

1. employed with the business for at least 12 months (it doesn’t have to be consecutive)
2. worked at least 1250 hours in the preceding 12-months for the employer; and
3. has a “qualifying reason” for the leave, which in this case is the “birth of a child, or to care for a newborn child.”

Although FMLA leave is unpaid,  many employers have policies that require employees to use paid leave at the same time they are exercising their FMLA leave.  If this is the case, then the employee will receive payment in accordance with company policy for the portion of leave that qualifies as accrued paid time off.  If an employee used this paid leave earlier in the year, it will not affect whether the individual is entitled to FMLA leave – however, no portion of the FMLA leave will be paid.

If the leave taken earlier in the year by the employee was FMLA leave, the employee is not be eligible for additional leave under the FMLA.  Eligible employees only get 12 weeks of FMLA leave in a 12 month period.  In other words, an employer is under no obligation to give an additional 12 weeks of leave. Of course, pregnancy cannot be a factor in the denial of additional FMLA leave.  In other words, an employer must uniformly apply a policy denying leave in all situations where FMLA leave is exhausted.  An employer cannot only deny additional FMLA leave for employees seeking maternity/paternity absence.

Final thoughts?

Maternity/paternity leave is full of nuances. Employers must have clear policies in place communicating to employees their rights and obligations as it pertains to receipt of FMLA leave. If you do not have a succinct policy in place or have additional questions on your rights to maternity and paternity leave under state and federal law, please do not hesitate to contact me.