Maternity leave is an important employee benefit, and many U.S. employers are legally required to provide it.
Put simply, maternity leave is time off from work for new mothers. This time off can be paid or unpaid. It is important because it provides multiple benefits to employers and their employees – and greatly benefits the children for whom the leave is taken.
In this guide, you will learn about the laws that govern the provision of maternity leave. You will also learn how to develop maternal leave policies, and you will get answers to questions that are likely to arise in connection with the provision of this type of leave.
In the U.S., employees who meet specified eligibility requirements – and whose employers meet coverage criteria – are entitled to 12 weeks of unpaid maternity leave. This requirement is set by federal law.
Some states have chosen to exceed the federal requirement by providing more favorable maternity leave benefits for employees.
It’s important for HR to understand that many expecting parents still use traditional terms, like “maternity leave” and “paternity leave,” rather than “FMLA” or “parental leave” when requesting time off to welcome a new child into the family.
So, it’s up to HR to sort through federal and corresponding state laws to find all of the leave benefits available to expecting parents. And as HR knows all too well, satisfying a company’s legal obligations under the federal FMLA and related state laws can get very complicated.
Which laws govern maternity leave?
A federal law known as the Family and Medical Leave Act (FMLA) requires covered employers to allow new mothers to take up to 12 weeks of unpaid leave for the birth of a child and bonding. FMLA leave must be taken within a year of the new child’s birth.
The same right to leave applies when a child is placed with an employee for adoption or foster care. In those cases, eligible employees may use FMLA leave before the child arrives if the leave is needed for placement purposes. For example, an employee may use FMLA leave to travel to another country to complete an adoption.
For most employees, federal law in the U.S. does not require employers to provide paid maternity leave.
An exception to this general rule applies under the Federal Employee Paid Leave Act, which makes 12 weeks of paid leave available to federal employees. To be eligible for this leave, federal employees must meet the requirements applicable to establish eligibility for FMLA leave. They must also agree in writing to go back to work for at least 12 weeks after the leave ends.
The FMLA establishes a floor when it comes to what maternity leave must be provided by law. States are not allowed to provide less leave than the FMLA requires, but they are free to provide more. Some states have elected to do so.
When employees take FMLA leave, their employers must maintain their coverage under any applicable group health plan as if no leave was taken.
If the plan changes while the employee is on FMLA leave, the employee is entitled to participate in the plan just as they would if they did not take the leave.
Employers can deny FMLA maternity leave to employees who do not meet applicable eligibility requirements. To be eligible, employees must have worked for the employer for at least 12 months, and they must have accumulated at least 1,250 working hours in the 12 months before the leave begins. Finally, they must work at a location where the employer has at least 50 employees within 75 miles.
An employer can deny FMLA maternity leave to employees if it is not a covered employer under the statute.
Private-sector employers are only covered if they have at least 50 workers in 20 workweeks for the current or previous calendar year. The weeks do not have to be consecutive, and there are specific rules about how to count employees. For a more detailed explanation of which private-sector employers are covered, click here.
When it comes to benefits other than group health benefits, an employee’s entitlement to those benefits while on FMLA leave depends on the employer’s established policy with respect to those other benefits when employees take other forms of leave.
Employees don’t get to take FMLA leave intermittently unless they need to do so due to a serious health condition apart from a normal pregnancy.
When an employee’s FMLA ends, they are entitled to return to the same position they held right before the leave began – or to an equivalent position with equal pay, benefits and other conditions of employment.
This does not mean, however, that an employee is entirely insulated from job actions that would have negatively affected them if they did not take FMLA leave. For example, if a particular shift is eliminated while the employee is on leave, they are not entitled to work that shift when they return. Similarly, an employee can be laid off while on leave as long as the employer can show they would have been laid off if they did not take the leave.
Employers should also remember that the FMLA specifically bars covered employers from retaliating against employees for taking maternity leave under the FMLA. For example, an employer cannot deny an employee a promotion just because they took FMLA leave.
Under a different federal law called the Americans with Disabilities Act, employers may be obligated to provide reasonable accommodations to employees with disabilities. And a federal law called the Pregnant Workers Fairness Act, effective June 27, 2023, requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth or any condition related to pregnancy. But the FMLA does not establish any requirements specifically relating to the provision of reasonable accommodation to employees who take FMLA leave. The FMLA is more about giving employees the right to take leave and return to essentially the same job than it is about extending job-related accommodations to employees.
Consequences of non-compliance
Employers that don’t comply with applicable FMLA requirements are subject to private lawsuits as well as enforcement actions by the federal Department of Labor.
If a violation of the FMLA is found, the following remedies are available:
- Back pay, which means earning and benefits the employee lost due to the violation. In cases involving termination, for example, back pay covers the period of time beginning with the termination and ending when judgment in the case is entered.
- Front pay, which is earnings and benefits the employee will lose in the future due to the violation. The period of time for front pay is the date of judgment in the case to some date in the future.
- Reinstatement to the employee’s former position.
- Liquidated damages, which are equal to any back pay plus front pay. In other words, back pay and front pay are doubled. These damages are not available if the employer shows it acted in good faith and had reasonable grounds to believe it was not violating the law.
Employees who prove an FMLA violation can also get attorneys’ fees and costs, but they may not recover punitive damages or damages for emotional distress.
Developing your maternity leave policy
When crafting a maternity leave policy, step one is to make sure it gives eligible employees all the leave they are entitled to under the law.
For the FMLA, that’s 12 weeks of unpaid leave.
State laws vary, and you’ll need to make sure your particular policy is up to speed with any additional specific state-law requirements.
If you decide to go above and beyond what the law requires, one of the things your maternity leave policy has to set out clearly is any additional eligibility requirements. You need to decide whether it is available to all employees. For example, part-time employees may be excluded, as might those who have not met an established service period requirement. Remember though, here we are talking about benefits you are providing that you are not legally obligated to provide. If a law requires provision of a certain level of maternity leave, you are not free to set your own eligibility requirements for that leave.
When formulating a policy, it’s important to gather input from all the relevant stakeholders. These people include your employees, legal counsel and HR personnel.
Actively seek input from your employees regarding what they would value most, such as by sending them a survey.
Of course, your budget plays a large role in whether you will be extending maternity benefits beyond what the law requires. Your job is to weigh the benefits gained from offering more against the cost of providing them.
Those benefits can be substantial. One study found that a significantly lower percentage of women leave the workforce if they are offered paid maternity leave.
Your policy should establish how much time employees have to use the leave. Under the FMLA, employees have a year to use their 12 weeks of unpaid leave.
The policy should also state whether employees will continue to accrue PTO while they are on maternity leave.
Also establish whether the leave may be taken intermittently. This is not required under the FMLA for bonding with a newborn or newly placed child, but you may choose to allow it.
If you decide to take the leap and offer paid leave, be very clear about whether the employee will receive full pay or some lesser portion of it.
You’ll also need to set the approval process, including notice requirements. You’ll need to be flexible here to account for the fact that an exact birthdate is often not predictable.
Once a new policy is finalized, make sure to promote it among your workers. It’s a valuable benefit, and you should do all you can to make sure all your employees know about it.
According to Build Remote, here are some of the U.S. companies with the best above-and-beyond maternity leave policies:
- Netflix (52 weeks)
- KPMG (52 weeks)
- Bill & Melinda Gates Foundation (52 weeks)
- FedEx (50 weeks)
- 3M (28 weeks)
- Paypal (26 weeks)
- Zynga (26 weeks)
- Google (24 weeks)
Should you offer paid maternity leave?
There is no one-size-fits-all answer to the question of whether you should offer your employees paid maternity leave.
Your task is to perform a thorough cost/benefit analysis and decide whether offering paid maternity leave makes sense and is a feasible option for your business.
There is little doubt that providing paid maternity leave provides benefits to new mothers and their newborns.
The National Partnership for Women & Families (NPWF) goes a step further, saying that paid leave is not only beneficial but essential for healthy mothers and babies.
More specifically, the NPWF says that providing paid maternal leave:
- Improves maternal and infant health
- Reduces the chances of intimate partner violence
- Decreases infant mortality rates
- Reduces the chances of head trauma caused by child abuse.
There is also evidence that paid maternity leave can reduce low birthweight and preterm births — and can significantly reduce the chances that the newborn or mother will need to be re-hospitalized, the NPWF adds.
Paid maternity leave benefits children by increasing the regularity of wellness checkups, increasing immunization rates, increasing breastfeeding and increasing parental engagement, research from the American Action Forum shows.
For employers, providing paid maternal leave can improve employee retention, attract a higher level of talent, improve morale and increase productivity.
So what’s the downside?
First and perhaps foremost, there is the financial cost of providing paid maternity leave.
The Brookings Institution has expressed the opinion that paid family leave can also lead to workplace disruptions. Employers may need to hire temporary employees in place of employees who are on maternity leave, adding cost and sometimes sacrificing work quality, Brookings says.
In addition, employees who do not have children may view the provision of paid maternity leave as an unfair benefit.
In the end, it is simply a matter of weighing costs against benefits and pulling the trigger on a decision.
How can HR pros help employees navigate maternity leave?
There are several ways HR pros can help their employees smoothly navigate maternity leave.
Let’s break it down into three stages: before leave begins, while the employee is on leave, and when the employee comes back to work.
Before leave begins, it’s important to make sure your employees are fully aware of the specifics relating to your maternity leave policy. Employees should have clear answers to these questions well in advance of the time that the need for leave arises:
- How do I prove eligibility?
- Exactly how much leave do I get?
- When can I use the leave?
- Do I get full pay while on leave?
- Do my benefits stay the same while I am on leave?
- How much notice do I need to give before taking leave?
Having answers that are clearly communicated to employees beforehand in your written maternity leave policy will go a long way toward avoiding bumps in the road in your administration of the policy.
Once leave begins, deliver on expectations regarding your level of communication with the employee while they are on maternity leave. How connected to the workplace does the employee want to be?
You may agree with the employee to have specific and regular check-in dates and times, such as a weekly morning meeting, to provide workplace updates.
Does the employee want to stay connected to social work events that are scheduled to take place while they are out? This is another point to discuss before the period of leave begins and then deliver on the expectation once leave starts.
Returning to work can be a difficult transition for new mothers. It’s important to help ease that transition. To do so, you can offer flexible hours at first. In addition, for employees who typically report to the office for work, offering the ability to work a day or more from home at the start may be a viable option. The level of flexibility you can provide here will depend a lot on the nature of the work. But if it’s a feasible option, you should consider it strongly.
Other questions about maternity leave
Can fathers take maternity leave?
Under the FMLA, both mothers and fathers have a federal legal right to take 12 weeks of unpaid leave for the birth of a child and bonding within a year of the new child’s birth. This right also applies when a child is placed with an employee for adoption or foster care, and the same one-year period applies. For a more detailed look at paternity leave, click here.
Are adoptive parents eligible for maternity leave?
Adoptive parents are eligible for maternity leave under the FMLA as long as they are eligible to take FMLA and their employers are covered by the statute. In cases involving adoption or foster care, eligible employees may use their FMLA leave before the adoption takes place if it is needed for placement purposes. For example, an employee can use FMLA leave to travel to another country to complete an adoption.
What if an employee experiences complications during pregnancy or childbirth?
An employee who experiences complications during pregnancy or childbirth may be entitled to additional protections provided by federal law under the Americans with Disabilities Act. This law bans discrimination against employees with disabilities and may require the provision of reasonable accommodation. The federal Pregnancy Discrimination Act also bans discrimination based on a condition that is related to childbirth or pregnancy. In addition, beginning on June 27, 2023, the federal Pregnant Workers Fairness Act will separately require covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth or any condition related to pregnancy. These employees may also be eligible for temporary disability benefits.
How does maternity leave impact employee benefits?
Under the FMLA, employers must maintain the employee’s coverage under any applicable group health plan as if no leave was taken. If the plan changes while the employee is on FMLA leave, the employee is entitled to participate in the plan just as they would if they did not take the leave. Under an applicable federal regulation, an employee’s entitlement to other benefits during FMLA leave is determined by the employer’s policy regarding those benefits when employees take other types of leave.
Can an employee work part-time during their maternity leave?
For FMLA purposes, the answer depends on the employer’s policy. If the employer has a policy that addresses outside employment, it can apply that policy to employees using FMLA maternity leave. But if it does not have a policy banning outside employment, it cannot deny FMLA benefits to an employee on maternity leave just because they work part-time during the leave period. Note: If a state law bans employers from restricting what employees do while off duty, then an employer may be prevented from having a policy banning part-time employment by those on maternity leave.
Can an employee extend their maternity leave?
To extend a period of maternity leave, employees may be able to use other available PTO. In addition, in some cases they may be eligible for short-term disability. Employers, states and communities may offer additional parental leave programs.
What happens if an employee returns to work and needs additional time off?
If an employee returns to work and needs additional time off, the employee may use other available PTO. In addition, depending on the reason for the need, the employee may be eligible to receive short-term disability benefits.
Maternity leave is a critically important benefit that greatly helps new mothers, their children and their employers.
There are clear and measurable benefits to providing this leave.
To answer the question of whether you should provide your employees with more maternity leave than the law requires in this area, carefully assess the costs involved with doing so and weigh them against the benefit that it provides.