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Have you ever noticed how people use the term “cobbled together” when referring to their maternity leave? As in, “I cobbled together PTO, sick leave, maternity leave, and FMLA” to create a leave. It’s no secret maternity leave is complicated in the US. Here are two typical examples, from friends who work for medium sized companies, covered under FMLA. Karen tells me, “You can take 12 weeks of leave with 8 paid in full (aka maternity) and 4 not paid. You can use the STD (Short Term Disability) for the additional 4 weeks *IF* your OB signs off. Mine did, but make sure yours is OK with signing off on it BEFORE you deliver. I had to fight for it and almost didn’t get my 4 weeks paid. She insisted I “wasn’t” disabled as I only had a baby. (I switched OB’s). You might as well use up your PTO, then fill the gap, if any, with STD. Depending on how much time you have left you should be able to cover a lot of it."
Laura, an accountant, writes, “I am in the middle of my leave. My company gave me 4 weeks before my due date and 8 weeks after for a c-section and then I could take another 6 weeks of parental leave plus use any of my vacation time. Once STD runs out, I will start a week of vacay and then the 6 weeks of parental leave. “
Head spinning yet? I decided to find out the rules. And the answer is: it totally depends on where you work, although there are basic protections under the law.
While more than 100 million leaves have been taken under the FMLA since 1993 many workers can’t take full advantage of its provisions because they cannot afford to take unpaid leave. Being paid for your maternity leave, however, is discretionary and based on your employer and state of residence. Only 8% of American workers have paid family leave. The 2008 National Study of Employers found 60% of employers offer 12 weeks of unpaid leave to both moms and dads, and 16% of companies with at least 100 employees provide full pay during maternity leave. 22% of employers offer maternity leave longer than 12 weeks, and 52% offer some sort of paid leave to mothers. Nearly one-quarter (24 percent) of the best employers for working mothers provide four or fewer weeks of paid maternity leave, and half (52 percent) provide six weeks or less, according to an Institute for Women’s Policy Research analysis of data provided by Working Mother Media, Inc., publisher of Working Mother magazine.
I spoke with Paula Brantner, an employment lawyer who runs the non-profit WorkplaceFairness.org, a really great resource. Paula noted the term “cobble,” “really is an apt description of the process, because you have different legal requirements so it really is figuring out, where you are in your pregnancy and how you fit the different requirements.”
I asked, “What advice would you give women legally so they can take as much leave as possible? What’s a framework to look at when you’re thinking of how to structure your leave”?
First, you should know a denial of pregnancy leave may violate Title VII of the Civil Rights Act, the Family and Medical Leave Act, or both laws, depending on whether an employee qualifies for protection under each law and the nature of the employer's conduct, according to Workplace Fairness. Discrimination based on pregnancy is a form of sex discrimination. “Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978 covers many forms of discrimination you may encounter because of your sex in decisions about hiring, firing, work assignments and conditions, promotions, benefits, training, retirement policy and wages. Title VII prohibits employers from treating pregnant women or temporarily physically disabled new mothers differently from other temporarily sick, injured or disabled employees, including discriminatory leave practices.
Maternity leave is usually created from a variety of benefits that include sick leave, vacation, holiday time, personal days, short-term disability (aka SDI, or STD) and unpaid family leave time. Most companies allow you to use your sick, vacation and holiday time towards your maternity leave. Some companies require that you use these benefits first before using any disability or unpaid time.
As strange as it seems, many employers consider maternity leave a disability. Many paid leave terms are funded by short-term disability insurance (SDI). Some companies provide this, and some employers require that
