At some point, one of your employees may need to take time off before and after giving birth. You must create and implement a maternity leave policy before that happens.
But before you can establish your policy, familiarize yourself with and comply with maternity leave laws.
What is maternity leave?
Maternity leave is time off that new mothers can use to care for their newborns. Most businesses refer to maternity leave as parental leave. Parental leave allows both mothers and fathers to take time off following the birth or adoption of a child.
Maternity leave can be paid or unpaid, depending on state laws and your business’s policy.
Do you have to provide employees with maternity leave? For many employers, the answer is yes. If maternity leave laws apply to your business, you must offer time off.
What are maternity leave laws?
There are both federal and state maternity rights at work laws. Here are a few laws you need to know about:
- Pregnancy Discrimination Act of 1978: Federal
- Pregnant Workers Fairness Act (PWFA)
- Family and Medical Leave Act (FMLA): Federal
- Paid Family and Medical Leave programs: State
1. Pregnancy Discrimination Act
As the name suggests, the Pregnancy Discrimination Act of 1978 protects employees who are pregnant.
Under the Pregnancy Discrimination Act, employers cannot discriminate against employees based on pregnancy, childbirth, or related medical conditions.
To comply with the Pregnancy Discrimination Act, follow these Department of Labor guidelines:
- Don’t exclude candidates who are pregnant or recently gave birth from your hiring process
- Allow a pregnant employee to continue performing her job as long as she is able to
- Do not terminate or deny promotions to an employee due to pregnancy, childbirth, or a related medical condition
- Keep your employee’s job open when they go on leave
- Don’t set a rule prohibiting an employee from returning to work after maternity leave for a specified amount of time
The Pregnancy Discrimination Act protects all employees from discrimination before and after childbirth.
2. Pregnant Workers Fairness Act
The Pregnant Workers Fairness Act is a law enforced by the Equal Employment Opportunity Commission. PWFA took effect on June 27, 2023.
Under PWFA, covered employers must provide reasonable accommodations to workers for pregnancy, childbirth, or related medical conditions. Examples of reasonable accommodations include:
- Flexible hours
- Closer parking
- Appropriately sized uniforms and safety apparel
- Additional break time to use the bathroom, eat, and rest
- Leave to recover from childbirth
Keep in mind that you must follow federal, state, or local laws if they are more protective than the PWFA.
3. Federal maternity rights at work: Unpaid
The Family and Medical Leave Act (FMLA) requires employers to offer employees up to 12 weeks of unpaid leave per year for parental and medical-related leave.
Although FMLA is a federal law, it doesn’t apply to all businesses. Businesses with more than 50 employees are required to follow the FMLA. Some businesses with fewer than 50 employees may also need to offer FMLA leave (e.g., joint employers).
Not all employees are eligible for FMLA coverage. Employees must work for FMLA-covered employers for at least 12 months and work 1,250 hours during the 12 months immediately before the leave.
Employers governed by the FMLA must allow eligible employees to take maternity leave.
4. State laws on paid maternity leave
Recently, more and more states have started implementing Paid Family and Medical Leave (PFML) programs.
Like the FMLA, states with Paid Family Leave require employers to offer employees time off for parental and medical-related leave. Unlike the FMLA, employees can take paid time off through PFML programs.
States with paid family leave laws include California, Massachusetts, and Oregon.
Employees can take paid maternity leave if they or their employer pay into the program. There are also certain requirements employees must meet, like working a certain number of hours, to be eligible for PFML.
Each state sets its own contribution rates and distribution amounts. Check with your state for more information.
Employers governed by state PFML programs must contribute or withhold money from employee wages so employees can take paid maternity leave.
Questions your maternity leave policy should answer
Now that you’re familiar with maternity leave laws, you can put your maternity leave policy into writing.
Your maternity leave policy should address common employee questions, like whether it’s paid, how long it is, who can take it, and any work accommodations.
Be sure to add your maternity leave policy to your employee handbook.
1. Is maternity leave paid?
Your maternity leave policy should answer whether you provide paid or unpaid maternity leave.
If you live in a state that requires paid time off, you must offer paid maternity leave. Include how much employees should expect to receive while on leave. For example, California employees receive approximately 60-70% of their regular wages while on leave.
You can decide to offer paid maternity leave even if you aren’t required to. According to one report, more than one in three employers offer paid maternity leave beyond what’s required by law.
And according to SHRM, 55% of employers offer paid maternity leave, and 45% offer paid paternity leave.
Here’s a quick snapshot of what you should detail in this section of your policy:
- Whether maternity leave is paid vs. unpaid
- Information on your state’s PFML, if applicable
- Percentage of regular weekly wages employees will earn if paid
2. How long is maternity leave?
Your maternity leave policy should also detail the length of time employees can take off from work.
When adding how long employees can take off for maternity leave, remember federal and state laws.
FMLA provides up to 12 weeks per year for unpaid family and medical leave. States provide anywhere from 6-12 weeks of paid time off.
If you’re not subject to FMLA or state PFML laws, you might be unsure of how much time to provide.
So, what’s the average maternity leave time? One source found that the average maternity leave is 10 weeks long.
You may decide to offer both paid and unpaid maternity leave. Include the length of time for both in your policy.
This section of your policy should include:
- How long unpaid maternity leave lasts
- How long you provide for paid maternity leave, if applicable
- The total length of maternity leave
3. Who can take maternity leave?
Again, not all employees are covered by federal and state parental leave laws. Be sure to discuss when employees become eligible for paid leave, unpaid leave, or both.
Remember that under FMLA rules, employees must work for at least 12 months and 1,250 hours to be eligible for leave.
Most states require that employees work for a certain number of weeks or hours before taking leave. And, some states restrict which employees can take paid family leave based on earnings.
If you voluntarily offer paid or protected unpaid maternity leave, summarize information about who is eligible.
Be sure to include:
- How many months employees must work before taking leave
- How many hours employees must work before taking leave
- Any other restrictions (e.g., wage minimum)
4. Will I offer flexible work schedules?
For many employees, returning to work after maternity leave is difficult. According to SHRM, 81% of employers allow at least some employees to come back to work gradually after childbirth.
If you have the ability, you may consider offering employees a flexible work arrangement. This may include the option to work remotely or to work flexible schedules before or after maternity leave.
This section of your maternity leave policy should detail:
- Work accommodations employees can receive before and after maternity leave
After creating your maternity leave policy, make sure your employees can read it! Patriot’s HR Software add-on to our payroll software makes it easy for employees to access important files online. Start your free trial of both today!
This article has been updated from its original publication date of August 14, 2019.This is not intended as legal advice; for more information, please click here.