Congratulations! You’re about to welcome a new child into your family! While this is an incredibly exciting time, you’re undoubtedly thinking about the quintessential working mother question: Will I get maternity leave?
You’re not alone—the maternity leave maze can be hard to navigate in the United States. Though efforts are underway to expand paid maternity leave to more moms—notably by Ivanka Trump, Sen. Kristen Gillibrand and Sen. Debbie Fischer—most expectant women will be entitled to unpaid leave (if any) in 2018.
Many women have the same maternity leave questions as you, though, so we've created this handy explainer. Here are our answers to some of the most common ones:
Are there any laws that guarantee me the right to take maternity leave? Does my employer have to offer it?
The most overarching law is the Family and Medical Leave Act (FMLA), a federal law that guarantees parents the right to take unpaid time off after a birth, adoption or foster placement. Unfortunately, not all employees are legally entitled to FMLA maternity leave. If you work for a private employer with fewer than 50 employees, you probably aren’t covered. On the other hand, if you work for the government or a big company, you are, as long as you’ve worked at least 1,250 hours over the last 12 months for the employer. If you’re covered by FMLA and you comply with its requirements—for example, you have to document your pregnancy/birth/adoption and give proper notice—your employer has to give you up to 12 weeks of unpaid maternity leave.
Some states have laws that guarantee you the right, not only to maternity leave, but to paid leave. They are still few and far between, but right now California, Rhode Island, Massachusetts and New Jersey legally require it, and New York, Washington, and the District of Columbia will follow over the next few years.
Learn more about New York’s new state parental leave law.
If you’re not covered by FMLA or state law, unfortunately it’s up to your employer whether to grant you maternity leave or not. It’s a good idea to investigate this early, to talk to your boss about a plan for taking time off and then returning to work, and, in the worst-case scenario that no maternity leave is offered, to ask whether you can save up vacation, sick and other personal time to use after your baby’s birth.
When should I talk to my boss about maternity leave?
The earlier the better! Sure, it can be hard to get up the gumption to talk to your boss. Still, according to Arianna Taboada, an expert on maternity-leave issues, early in the second trimester is a good time to initiate communication about your leave. “If you’re discussing needs and expectations up front, you’re setting yourself up for transition and coverage. When you return to work, it also allows for clear expectations on both sides,” says Taboada.
If you are planning to take leave under FMLA, you must give your employer at least 30 days notice for any leave that is foreseeable. Therefore, you should talk to your boss at least 30 days in advance of your planned leave so you can fill out any necessary paperwork and start to plan for the leave. If you need to take leave earlier than expected for unforeseeable reasons, you must give your employer notice in a reasonable manner. For instance, if you go into labor two months early, you should notify your employer as soon as the baby is born and everyone is stable.
Are there other things I should do to prepare for maternity leave?
It’s all about research and planning! Natalie Pedersen, a professor and employment law expert at Drexel University, recommends, “Look in your employee handbook to find out the company's policy on maternity leave. Once you know what you are entitled to, you should be sure to fill out any required paperwork your employer might have in order to take advantage of maternity leave.”
“You should also offer to work with your boss on a transition plan for your leave to try to minimize the interference it will have on the business,” says Joan C. Williams, director of the Center for Worklife Law at the University of California.
Will my maternity leave be paid?
That depends. Some employers offer paid leave to new mothers and (sometimes) fathers. Again, Pedersen advises, “You should look in your employee handbook to see whether your employer offers paid leave. Often, if employers offer paid leave, they require you to take your accrued paid leave (such as sick or vacation time) before taking advantage of their paid maternity leave.” In other words, planning ahead can help you maximize your pay; you may want to save your paid time off to extend your maternity leave.
If you’re lucky enough to live in a state that guarantees some paid leave, you’ll get at least some of your salary for at least some of your leave. California, Massachusetts, Rhode Island and New Jersey currently have laws that require employers or their insurance carriers to pay you during leave, but each state’s requirements are slightly different. In January 2018, New York will join the paid leave crowd, and Washington and the District of Columbia will follow in 2020.
Do I have to pay taxes on my maternity leave?
Almost definitely, yes. If your employer pays you during your leave, that’s taxable income, just as it would be if you were at work every day. Some employers pay disability benefits, and that’s taxable, too. If you are paying for your own disability benefits, then you’re off the hook.
You said something about disability leave? How does that work?
Some employers pay for your maternity leave through a short-term disability policy, which may be included in your benefits package (check with HR!). The employer may pick up the bill for the policy, or it may be your responsibility to pay for it, even if you get it through work. Typically, you need to have this policy in place before you become pregnant.
If you have a short-term disability policy, it will kick in to pay you (at least part of your salary, depending on the policy) if you have pregnancy complications and have to take off work. In other words, you need a medical reason to collect under the policy. For some policies, the time you take to recover after a birth also counts as a “disability,” so you can get paid for (usually) several more weeks.
The key to using short-term disability income to pay for your maternity leave is to plan ahead—find out if you have one, if you need to buy supplemental insurance to get paid 100 percent of your salary while you’re out on leave and if your policy covers leave at all.
How about benefits? Do I need to worry about my health insurance while I’m out on maternity leave?
Under FMLA, a covered employer must continue to pay for your health insurance while you’re out on leave. If you typically pay a co-pay, you must still pay it.
Unlike some state laws, however, FMLA does not require covered employers to count days you’re on leave toward seniority benefits or Paid Time Off (PTO).
What if I’m adopting or using a surrogate? Am I still entitled to maternity leave?
Again, you should check your employee handbook as to paid leave. Under the FMLA, new parents who welcome a child through birth or adoption are entitled to 12 weeks unpaid leave for bonding with the child.
What if my new child isn’t an infant? Can I still get maternity leave?
Yes, at least under the FMLA and some states’ laws, employees who welcome a child through adoption (even if not an infant) can take up to 12 weeks unpaid leave.
Can my partner take parental leave, too?
The terms of his/her leave will depend on his/her employer's policies; some employers offer paid leave to parents of either gender, regardless of whether they gave birth. If your partner’s employer doesn’t pay for parental leave, some states will pay him under their paid parental leave plans. At the very least, under FMLA, he can take up to 12 weeks unpaid leave.
When should I start my maternity leave?
This is a tough question, especially when you don’t know ahead of time how you might be feeling at the very end of your pregnancy. Pedersen advises, “It is really up to you and the plan you work out with your boss. Some parents like to save all their leave for after the child is born. Others may want to take some leave beforehand, particularly toward the end of a pregnancy. Either way, if you are taking leave under the FMLA, be sure to give your employer at least 30 days notice if your leave is foreseeable.”
If I want more time off, how can I extend my maternity leave?
This will depend on your employer. Some employers offer short-term disability leave and may allow extension of maternity leave under those policies if the extension is stemming from a pregnancy or childbirth-related complication. Otherwise, you should check with your human resources department and see if there is any flexibility in extending your leave beyond that which the employer offers voluntarily or is required to offer under the FMLA or state laws. Some employers may be glad not to have to pay you during a slow period; others will be counting the days until your return. It never hurts to ask!
What if I take maternity leave and get fired when I’m away from work?
In some countries, an employer may not fire an employee who is on parental leave, regardless of the reason. Not so in the United States. Still, under FMLA, your employer can’t legally retaliate against you for taking leave, and she can’t discriminate against you for taking your legally entitled time off.
Additionally, under Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act, an employer cannot discriminate against an employee for pregnancy, childbirth or other related medical conditions. That means you’re legally protected if the employer isn’t supportive of your new family. On the flip side, an employer can fire an employee for reasons unrelated to the leave or birth—think mass layoffs—even if she is on maternity leave when the situation arises.
If you are fired for pregnancy or maternity leave discrimination or retaliation, Williams recommends that you call the Center for WorkLife Law’s national hotline. You’ll be referred to an excellent attorney in your area who can help you assert your rights. Sure, your first choice is just to have a job, but if that’s not happening, your chances of prevailing in court are good. “The latest figures suggest that plaintiffs win about 2/3 of family responsibilities discrimination cases filed in federal court,” Williams explains
Right now I’m not sure whether I want to return to work or stay home with my baby. Should I tell my boss that upfront? What happens if I make that decision during my maternity leave?
According to Taboada, you need to strategize and “take the pulse” of what has historically happened in your organization for pregnant woman. “Figure out who’s a safe person in your organization—someone who’s gone through something similar—and talk through the issue with her,” she recommends. If you know what issues others have encountered, you can plan better for how you might deal with similar issues.
If paid maternity leave depends on your returning to work, you need to know that upfront, before you mention that you might stay home. Still, you should tell your employer of your plans not to return as soon as you make this decision so you can both plan for the transition. And, as with everything else, you should also consult your employee handbook if you are taking paid leave under a company policy as to any reimbursement the employer may require if you decide not to return. If you are taking leave under the FMLA, the employer may request reimbursement for any benefit expenses they have paid on your behalf during the time of the leave.
Finally, according to California attorney and employment law expert Lisa Pierson Weinberger, do think about what your current employer might report about you to potential future bosses. “Most employers try to be careful about what they say about a former employee as a general matter, but the best way to ensure that a woman leaves on good terms is to provide as much notice as possible about her decision not to return, and to be as helpful as possible in answering questions and helping to transition her work to her replacement,” Weinberger explains.