Time Off for Baby
When planning your pregnancy leave from work, you need to get a handle on what laws apply to your situation and what benefits you’re entitled to. With so many options, understanding your legal rights with regard to employment discrimination and health insurance benefits during and after pregnancy is crucial.
Pregnancy Discrimination on the Job
You have an absolute right to work while you are pregnant. The federal Pregnancy Discrimination Act of 1978 (PDA) applies to employers with 15 or more employees and states that an employer can’t refuse to hire you or promote you, and can’t fire you because you’re pregnant.
Despite the law, problems do happen. Ellen Bravo, director of 9to5 National Association of Working Women, warns, “Discrimination against pregnant women is still commonplace and often subtle.”
Jojo Rockefeller of California concurs, “I didn’t receive a good review because I was gone for maternity leave. I felt that I was discriminated against because I was pregnant.”
She’s not alone. Vermont mom Beth Thompson recalls, “I do not feel my employer discriminated, but my supervisor most certainly did. She was about 15 years older than me, single and desperately wanting to get married and start a family. She was very bitter when I informed her of my pregnancy. She even went so far as to create some new projects for me to complete during the last two months of my pregnancy which she knew would be next to impossible for me to do at that point, such as climbing up on ladders. When I could not complete the project, she made a big deal about it and tried to stir up trouble with the employer.”
Your employer can’t require you to take a mandatory leave while pregnant or after the baby is born. If you wish to work during your pregnancy (and right up to the birth), you must be allowed to. If you take a leave or go on disability during your pregnancy and then become able to return to work when your condition improves, your employer must allow you to return if you choose to.
If you believe you are being discriminated against, contact the federal Equal Employment Opportunity Commission or seek assistance from an attorney or a women’s rights organization.
Your Risk, Your Choice
The Supreme Court has ruled that women are the only ones who can make decisions about risks to their unborn babies. This means your employer cannot remove you from a position it feels is “dangerous” because you are pregnant. If your job involves exposure to chemicals, radiation, loud noises, extreme temperatures, smoke or other environmental conditions that can cause harm to you or your baby, you should discuss the work conditions with your doctor and decide if continuing is safe. However, your employer cannot require you to leave your position: It must be your decision.
If you are temporarily unable to do your job because of your pregnancy and your doctor agrees, your employer must give you alternate tasks or allow you to take a disability leave or a leave without pay.
The Health Insurance Portability and Accountability Act (HIPAA) requires that employers that provide health insurance must cover pregnancy and birth-related medical costs in the same way it covers other medical conditions. An additional or extra deductible or separate pay schedule that applies to pregnancy or birth is illegal.
If you decide not to return to work after a pregnancy leave, Rhonda Ruiz, a mother in Alabama, recommends finding out what the policy is about health insurance. From her own experience she learned, “Your company may have policies that require you to repay benefits received during your leave.”
Each state has its own laws about state disability benefits, but generally you are considered “disabled” if you are medically unable to perform one or more of your job duties. Disability leave pays a percent of your regular previous pay. California’s recently amended disability leave law categorizes new parents as temporarily disabled, providing payment while a parent cares for a newborn. In most states though, the leave only applies to mothers and only when they are physically unable to work.
Many companies have their own disability insurance policies. If your doctor certifies that you are unable to continue working due to a pregnancy-related condition or due to the birth itself, you can use your company’s disability leave. Your condition must be treated in the same manner in which other conditions are treated (this is governed by the PDA). So, if your employer provides for paid leave for other medical conditions — anything from heart disease to a broken leg — it must provide for paid leave for pregnancy. If your company has an official policy but has bent the rules in the past for other people for any kind of disability (for example, allowed employees with cancer to take extended leaves), then the rules must be bent for you.
A woman is usually considered “disabled” for six weeks after a vaginal birth and for eight weeks after a C-section birth, but this can vary with a doctor’s certification
The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) applies to you if you work for a public agency (federal, state or local) or for an employer with 50 or more employees and if you have been employed there at least 12 months and worked at least 1,250 hours in the last 12 months.
You may take up to 12 weeks of unpaid leave in a 12-month period for pregnancy, post-pregnancy recovery or to care for a new baby (the law also allows leaves to care for ill family members and for adopted children). You can take this time off as one big block, or you can take it in pieces. For example, you might choose to take off the last two weeks of your pregnancy, the first two months after your baby is born and then perhaps return to work on a part-time basis to use up the rest of the time. Thirty days notice is required for foreseeable events (birth is foreseeable, but things like bed rest during pregnancy aren’t).
Mary Lebeau of New Jersey used FMLA to take seven weeks off and then returned on a part-time basis two to three days a week.
Under FMLA, your employer must keep your health benefits in place (but you may have to pay premiums yourself) while you are gone and must restore you to original job or to an equivalent job with equivalent pay when you return. Your employer cannot penalize you for taking the leave or allow it to affect any of your benefits.
If you and your spouse work for the same employer, you are entitled to a total of 12 weeks unpaid FMLA leave divided between both of you in a 12-month period to care for your child. So for example, you could take 10 weeks and your spouse could take two weeks. These leaves can also be taken simultaneously. The time you take for your own conditions does not count against your spouse’s time. Spouses who work for different employers are entitled to each take the full FMLA 12 weeks.
Individual states also have their own pregnancy leave acts, similar to the FMLA. This leave can be combined with FMLA leave to take a larger amount of time off.
If your employer offers personal or vacation time, you can choose to use this time in addition to the other time off, if you have accrued it and if you give the required amount of notice. You can be required to use paid vacation time concurrently or prior to your unpaid leave time. If your leave overlaps calendar years, you need to make sure your employer does not require you to use vacation or sick time first in the new year before continuing with FMLA or state pregnancy leave time.
Smaller Companies and Self-Employment
If you are employed by a company with fewer than 50 employees, you are not covered by FMLA. If you’re in this situation, find out if your company has a policy about pregnancy leaves and also determine what your state and municipal laws are, since these will determine what kind of disability leave you qualify for. Ask your employer what you can work out.
Josephs recommends, “If you work for an employer who isn’t covered by FMLA or does not offer a short-term disability or maternity policy, find out if employees are able to use accumulated paid sick and/or vacation days for pregnancy, childbirth and child care. For an unpaid leave, negotiate how much time you think you will need and check in occasionally with work apprising [your employer] of your status. You may want to come back earlier or later than you originally thought.”
If you are self-employed, you don’t qualify for state disability payments. You can take out a private disability insurance policy, however, which will pay you during the time you are certified as disabled by your health-care provider. Such coverage takes planning, as you must obtain this policy before becoming pregnant.
Combining Types of Leave
Many women combine disability, vacation time, sick leave, state leave time and FMLA. Lebeau will draw on many types of leaves when her fifth child is born. She’ll take one week of sick time first, then two days of vacation time that she must use by the year’s end or lose it. “Both of these will be full pay. Afterward and until the baby is born, I will be on disability. Although disability in [my state] is officially four weeks, it does continue until the actual birth,” she said. During that time, I will receive approximately two-thirds of my pay. Once it is determined that I can work, I will be taking approximately five-and-a-half months of unpaid time, then hopefully six months of part-time work with part-time pay (by combining FMLA with state pregnancy leave).”
When arranging a leave, you need to complete various forms. Frederica Roberson of Texas remembers how difficult it was for her to get everything in place before her leave. “The information was not made easily available to me. I did have to read over my insurance policy numerous times and call the policy’s help line to get some clarifications on what was covered. I visited my human resources department numerous times until they knew me by first name. I constantly asked questions about how much money I was going to get, if my same position would be intact when I returned, did I have to take a pay cut when I got back from leave,” she said.
Keep a folder to organize all your paperwork, and keep copies of everything. Be persistent, ask questions, make phone calls and send inquiries until you have all the information and documentation you need.
Although FMLA offers families time to spend with a new baby while maintaining job security, managing the time off without pay can put you in a financial crunch. For Ann Jones of Iowa, her FMLA leave “was more of a financial hardship than we expected.”
Lebeau did not take a FMLA or state pregnancy leave with her other pregnancies and reflects, “I’m not sure I could have afforded to leave for six months [without pay]. My advice is to start saving as soon as that “dipstick” turns blue!”
Likewise, disability leave can also be financially difficult. Not only is the pay reduced, but you may face processing delays. Lebeau warns, “In the past there were times when I didn’t receive any disability payments until I was already back at work.”
To afford a leave you do need to plan ahead. Cutting expenses when you have a new baby can be hard, so planning ahead and saving money in advance to live on when your income will be reduced is a good idea.
In the end, the choice is up to you to determine how much leave you will take. April Chase of Colorado had her baby on a Friday and returned to work on a Monday. She was working an hourly job, didn’t qualify for disability and there was no state leave program.
“I took pay in lieu of vacation time off, so that I could pay medical expenses not covered by my insurance, so I couldn’t use vacation days. I would have qualified for unpaid FMLA leave, but as a single parent and with a 7-year-old at home already, I simply could not afford not to work. I don’t know what I would have done. Quit my job and gone on welfare!”
“My main regret is not taking off more time to be with my babies, especially since I was nursing,” said Virginia mom Deborah Elias. “I loved my work, but needed more time to rest, bond with my child and get used to being a mother. So, I would advise taking off as much time as you can afford.”
Without question choosing a pregnancy leave requires weighing your options, emotional needs and taking a hard look at your financial situation. With a little thought and creativity, you can find a solution that works best for you and your growing family.
Get more help via these resources.
NOW Legal Defense Fund
ACLU Women’s Rights Project
Equal Employment Opportunity Commission
• 9to5, The National Association of Working Women
Wage and Hour Division of the United States Department of Labor (contact them if your rights have been violated under FMLA) 800-959-FMLA