Maternity Leave Rights and Disability

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No nationwide law requires all employers to allow time off or provide benefits for maternity or parental leave. Whether you are entitled to time off after having a baby, and whether you are entitled to be paid for that time, depends on your employer's policies, your state's laws, and the size of your employer. 

Unpaid Maternity and Paternity Leave

State and federal law give some employees the right to take unpaid leave after having a baby. 

The federal Family and Medical Leave Act (FMLA) requires employers with at least 50 employees to give unpaid leave for pregnancy and parenting, among other reasons. Eligible employees may take up to 12 weeks off in a 12-month period. Some states have adopted similar laws. State family leave laws may be more generous that federal law or may apply to smaller employers. For more information on the federal FMLA and state laws providing for time off, see Nolo's articles on Taking Family and Medical Leave

In addition to the FMLA, a number of states require employers to give employees time off for pregnancy disability: the period of time when a woman is unable to work due to pregnancy, childbirth, and related conditions. These laws don't provide for maternity or parental leave per se. Generally, an employee is entitled to this leave only while she is physically unable to work. How much time off an employer must provide depends on state law. Some states provide up to four months off, if an employee is unable to work. Some states simply require employers to provide a "reasonable" amount of time. 

Getting Paid While on Maternity Leave

A few states (CaliforniaNew JerseyRhode IslandNew York, and Hawaii) have adopted temporary or short-term disability insurance programs. In these states, an employee who is temporarily unable to work due to an off-the job illness, injury, or condition -- including pregnancy -- is entitled to collect benefits. Typically, these benefits replace a portion of the employee's usual wages (55 to 60% is common), up to a limit. However, these benefits are available only while the employee is physically unable to work due to pregnancy disability, childbirth, and related conditions. They do not pay an employee to stay home with a new baby once the employee is able to work. For a normal pregnancy, these programs typically pay for only four to six weeks of time off after a new baby is born. 

Currently, two states -- California and New Jersey -- have included paid family leave as part of their disability insurance programs. Both states gives employees the right to take up to six weeks off, partially paid out of the state's temporary disability insurance program fund. This leave can be used for parenting or to care for a seriously ill family member. The state of Washington has passed a similar law, but it has been suspended until 2015 due to state budget shortfalls. For more information on these state programs, see our series of articles on state short-term disability benefits and family leave.

Some employers voluntarily adopt short-term disability programs. Employers generally purchase an insurance policy, which pays out benefits according to a set schedule if the employee is temporarily unable to work due to disability. The terms, duration, and benefits available under these programs depend on the terms of the policy. However, because they are also intended to pay employees only while they are unable to work, these policies don't provide for parental leave once an employee is physically able to do the job after giving birth. 

You may also be eligible for paid time off under your employer's leave policies. An employer might provide for paid parental leave, for example, or simply allow employees to use their accrued paid leave (such as PTO, vacation, or sick days) as parental leave. In this situation, the rules for using leave will depend on your employer's policies. 

by: , J.D.

This article is provided for informational purposes only. If you need legal advice or representation,
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