A maternity leave policy covers employee eligibility and maternity leave duration, along with benefits and other details associated with your policy. Under the federal Family & Medical Leave Act (FMLA), employers with 50 or more employees must provide unpaid maternity leave. Some states, however, require paid maternity leave, and some businesses choose to offer paid maternity leave regardless of the base requirement.
Creating a maternity leave policy with the applicable federal and state laws in mind is a sound business practice to retain good employees, prevent potential litigation, and ensure your guidelines are clear. You can create your own maternity leave policy by using one of our templates below. This will ensure you are state-compliant and provide written documentation for your employees.
Want to create a separate leave policy for fathers? Use our free paternity leave policy template.
When Maternity Leave Is Required
Two primary factors affect whether you are required to provide maternity leave: the size of your company and your business’s location.
FMLA Affects Companies With > 50 Employees
If your business has 50 or more employees, FMLA requires you to provide up to 12 weeks of unpaid maternity leave. If you employ fewer than 50 employees, there is no federal labor law requiring you to provide maternity leave.
There is a minimum number of hours (1,250) that an employee must have worked to file for leave under the FMLA. That’s why it’s important to have a proper process for tracking employee’s time. We recommend using time tracking software to keep this tracked before an employee’s leave.
Although not directly related to maternity leave, you should also be aware of the Pregnancy Discrimination Act, which applies to companies with 15 or more employees. This act prohibits discrimination based on pregnancy, childbirth, and related medical conditions. For instance, if you allow other disabled employees to work from home, you must offer that option to your pregnant employee as well.
Additional Parental Leave Requirements Affect Your State
While there is no federal law requiring parental leave for businesses with fewer than 50 employees, your state may have additional laws that you must comply with.
And, it also depends on what you’ve done in the past. If your time off policy states you provide maternity leave, or if you allowed another mom work flexibility such as working from home, then you must abide by that precedent.
Providing paid maternity leave can be a great way to differentiate your company from competitors and help retain your best talent. When you consider how much it costs to recruit and train a new employee, a paid maternity policy can make sense for your business.
State Maternity Leave Laws
Choose your state from our drop-down menu to understand the maternity leave laws that apply to your business and how they may differ from federal law. If your state is not listed, it doesn’t have a specific maternity leave law.
Under the California Family Rights Act (CFRA), employers with five or more workers must provide eligible employees with up to 12 weeks of unpaid, job-protected leave over 12 months for certain qualifying reasons. California also requires employers to provide paid leave for employees who have worked for the company for at least 12 months and at least 1,250 hours during the previous year. Workers falling under this requirement are entitled to up to eight weeks of paid leave and will be paid approximately 60% to 70% of their average weekly wage—up to a maximum benefit of $1,357 per week.
Colorado has a relatively new program, the Family and Medical Leave Insurance Program (FAMLI), and workers in the state can begin receiving its benefits starting Jan. 1, 2024. Under it, employers with at least one employee for at least 20 weeks in a year must provide up to 12 weeks of paid leave—and an extra four weeks for those who experience complications in pregnancy or childbirth.
The Connecticut Family Medical Leave Act (CFMLA) gives employees the right to take up to 12 weeks off in any 24-month period for a serious health condition, which includes pregnancy. Employees are also eligible for an additional two weeks of paid leave under this program if they’re unable to work because of a serious health condition related to their pregnancy or childbirth. To be eligible, an employee must have worked for your company for at least 12 weeks. When on leave, they’ll be paid their regular wage or up to 60 times the Connecticut minimum wage.
The Healthy Delaware Families Act requires employers with at least 25 employees to provide up to 12 weeks of paid family leave. Note: This law has been signed, but employees cannot take advantage of the paid leave benefits until Jan. 1, 2026—though employers will begin deducting premiums starting Jan. 1, 2025.
Washington, D.C., requires employers with employees who work at least 50% of the time inside the District to provide up to 12 weeks for the employee to bond with a new child and two weeks to receive prenatal care. A worker will receive 90% of their regular wage, up to $912 per week, and 50% of their remaining weekly pay, with a cap of $1,009 per week.
Hawaii employers must allow employees who have worked at least 12 months to take four weeks of unpaid leave while they are disabled due to pregnancy, childbirth, and related conditions. All working women are eligible; company size does not matter.
Maine employers with more than 15 employees must give eligible employees up to 10 weeks off in a two-year period for the birth or adoption of a child. Note: There is presently a bill in the Maine legislature which, if passed and signed into law, would require employers with up to 49 employees to provide two weeks of paid maternity leave plus one week of parental leave to a spouse or partner, and for employers with 50 or more employees, to provide employees with four weeks of paid maternity leave and two weeks of paid parental leave to a spouse or partner.
Employers in Massachusetts with at least 25 employees must give eligible employees up to 12 weeks off for the birth or adoption of a child. All W-2 employees, self-employed workers, and some 1099 independent contractors are eligible. The benefit amount received is calculated based on an employee’s weekly wage and the Massachusetts average weekly worker wage, up to a maximum of $1,129.82 per week starting Jan. 1, 2023. The maximum weekly benefit before then is $1,084.31.
Minnesota employers with at least 21 employees must allow eligible employees to take up to 12 weeks off for prenatal care, pregnancy, childbirth, and bonding with a new child. Bonding leave is available to biological and adoptive parents but must be taken within 12 months of the child’s birth or adoption. To be eligible for leave, the employee must have worked at least halftime for the employer for 12 months before the leave request.
The Granite State Paid Family Leave Plan provides employees with up to 60% of their average weekly wage for up to six weeks per year. Note that this is a voluntary plan for private employers in New Hampshire.
New Jersey employers with at least 30 employees must provide their workers with up to 12 weeks of leave in a 24-month period to bond with a child. The employee must have worked at least one year with the company to be eligible. Workers receive up to 85% of their average weekly wage, up to a maximum weekly benefit of $993.
New York Paid Family Leave requires employers to provide up to 12 weeks of paid leave for employees who work at least 20 hours per week. To be eligible for this benefit, employees must have worked for a company for at least 26 consecutive weeks. Workers get 67% of their average weekly wage, up to a maximum of $971.61.
Oregon Paid Leave is one of the newest programs. Companies with at least 25 employees begin paying into the program on Jan. 1, 2023, and employees can begin receiving benefits on Sept. 3, 2023. Employees can take up to 12 weeks of paid leave and an additional two weeks if they have medical issues related to the pregnancy. Employees will be paid up to 100% of their average weekly wage.
The Rhode Island Temporary Caregiver Insurance Program provides up to four weeks of paid maternity leave and up to 30 total weeks if pregnancy-related medical conditions prevent the employee from working. The benefit maxes out at $1,007 per week and is based on the employee’s highest earning quarter in the last year.
Employers in Vermont with at least 10 employees must provide unpaid time off to eligible employees for pregnancy, childbirth, or adoption of a child up to 16 years old. They may take up to 12 weeks of family and medical leave in a 12-month period.
In 2014, Vermont enacted a law that gives employees the right to request a flexible working arrangement up to twice a year. Such an arrangement might involve a change in work hours (for example, to begin and end work later), working from home, changes to the number of hours or days an employee works, or job sharing.
The Paid Family and Medical Leave program, a Washington state-run insurance program, provides up to 12 weeks of paid leave for bonding with a newborn. Employers can provide paid family and medical leave benefits either through the state-run program or purchase a voluntary private plan that provides benefits equal to or greater than the state minimum requirements.
Phases of Maternity & Corresponding Guidelines
There are three phases of maternity that have specific laws that companies must follow:
- The phase when an employee works while pregnant.
- The timeframe when they leave work to prepare for, deliver, and care for their baby.
- The phase when the new mother returns to work after the birth of their child.
Phase 1: Employee Working While Pregnant
Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act (PDA), applies when you have an employee who is pregnant. Although, as we noted earlier, it applies to employers with 15 or more employees, we recommend all employers follow the guidelines as a best practice.
While an employee is pregnant, they are further protected by the Americans with Disabilities Act (ADA), required for any employer with 15 or more employees. The ADA stipulates that reasonable accommodations must be made for the employee to do their job successfully, similar to any other employee with a disability or special need. For example, the employer may need to offer light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees.
Some examples of reasonable accommodations include:
- Providing a lumbar support pillow if the expectant mother is having back pain.
- Offering a chair for them to sit in (for jobs that normally require standing) so that they don’t have to stand for hours.
- Allowing them extended breaks for morning sickness or restroom use, if they request.
Keep in mind that new employees are just as protected by the federal antidiscrimination legislation as employees who have been with you for 10 years. Even though your employee is new, they should be treated just like other employees. However, they are not eligible for FMLA leave until they have been employed by you for one year.
Phase 2: Employee on Maternity Leave
As a private employer with 50 or more full-time employees, you are required to allow new mothers to take unpaid maternity leave (up to 12 weeks) while guaranteeing that they will have a job when they return, either in the same position or a similar one. However, if you employ fewer than 50 full-time employees, under federal law, you have no obligation to provide maternity leave.
You are also required to continue group health insurance coverage and cannot penalize the time away from work as an absence.
Phase 3: Employee Returning to Work
When a new mother returns to work, there are laws in place to protect their right to pump or express milk. A breastfeeding mother who returns to work has a right to pump in the workplace under a provision of the Patient Protection and Affordable Care Act, which covers work regulations like minimum wage, breaks, and record-keeping. As the employer, you are required to provide them with adequate break time and a clean, private place to pump.
Some acceptable and non-acceptable examples of a location for the new mom to pump include:
|A small conference room with a door, a chair, and an electrical outlet.
|The bathroom, where employees are walking in and out. Prohibited by federal law.
|A private office with a door that you make available several times a day.
|A common room or break area where other employees enter frequently or no door is available to close.
|A breakroom with a sign that says "Privacy Please when Door is Closed."
|A vehicle in the parking lot.
Compliance with this law is required for all employers regardless of size. However, if you have fewer than 50 employees and can prove an accommodation provides an undue hardship on your business, you may be exempt. Undue hardship is defined as, for example, the need to do construction on your employment site to provide a private room for pumping. You can find more information about complying with the law from the US Breastfeeding Committee.
Terminating Pregnant Employees
Let’s make this clear from the start: you cannot fire an employee because they’re pregnant. You must show the employee was terminated for a reason completely unrelated to their pregnancy. Do that by extensively documenting the employee’s poor performance and your company’s support to help them improve.
Terminating a pregnant employee, whether they’re recently pregnant or on maternity leave, is legally tumultuous territory. Even if you have your documentation in order, you could still face a wrongful termination lawsuit that, even if you’re in the right, could result in thousands of dollars in legal expenses.
A better option would be to provide coaching and training on their work performance and continue to document performance issues. Then, if those issues continue after their maternity leave is over, consider waiting (a minimum of six months) after your employee has returned to work before considering letting them go. Always document performance review meetings, coaching sessions, and training, and discuss with your attorney before taking action.
For employees currently on maternity leave, if you employ fewer than 50 people, you have no obligation to guarantee your pregnant employee a job when they return to work. However, if you have a policy that states that you provide maternity leave, or if you allow other disabled workers to take an extended leave of absence, then you must abide by your policy and precedent.
Maternity Leave Policy Options
Here are several options for customizing a maternity leave policy for your company. We recommend a combination of these to support your business and show care for your employees fairly and inexpensively while creating a great company culture.
- Provide Unpaid Maternity Leave: Consider offering a set amount of unpaid leave, such as 12 weeks, or have that range be decided by the employee and simply state that they may take “up to 16 weeks,” which is the maximum generally offered by small businesses.
- Offer Remote or Work-from-Home Options: Allow new moms to work from home once they feel well enough to do so and have exhausted their paid or unpaid leave. Stay in touch with the new mom as their desire to work from home may change once the baby arrives. In addition, you may need to provide them with work-from-home tools such as a cellphone, internet, and computer.
- Allow Flexible Scheduling: Provide a flexible work environment and flexible schedule such as part-time, or fewer, longer days that add up to their regular hours. Or consider allowing the new mom to come in as they are able, once recovered from the delivery.
- Provide Short-term Disability Insurance: Short-term disability insurance at the employee’s expense can be added to your benefits package. This is a great perk for employees who value family and is at no cost to you as the employer.
- Offer Paid Maternity Leave: You can offer paid maternity leave, which is becoming more popular. This paid leave can be offered at a percentage or a flat rate for a certain number of weeks.
You may also need to consider policy options for specific situations, such as during an employee’s first year on the job or for remote employees.
Administering Your Maternity Leave Policy
After developing your maternity leave policy, provide employees with a copy and have them sign and date the policy.
Be sure to follow these general guidelines:
- Update your employee handbook to include verbiage about your maternity policy.
- Document their acknowledgment of the policy in their personnel files.
- Be mindful of laws in your state and federal laws that state you must abide by any policies you have in place.
It is important that your business have a maternity leave policy, whether paid or unpaid, so that your employees are clear about what your business offers. Keep in mind also that having a maternity leave policy can differentiate your small business within your industry or your community. It also leads to a positive company brand image and helps retain good employees.
New to managing employees? Check out our guide to employee management for practical advice.