Under the federal Family & Medical Leave Act (FMLA), employers with 50 or more employees must provide new and adoptive moms up to 12 weeks of unpaid leave to care for themselves and their infants. Although FMLA only requires employers to offer unpaid leave, some businesses choose to offer paid maternity leave. Additionally, several states require paid maternity leave and, even if your state doesn’t require it, creating a maternity leave policy is a sound business practice to ensure you retain good employees and prevent potential litigation.
You can create your own maternity leave policy by using one of our policy templates below. This will ensure you are state compliant and provide written documentation for your employees.
State Maternity Leave Laws
State laws can be stricter than federal law, so we suggest you review what’s different in your state. For example, both California and Oregon are states with paid sick leave laws that can be applied during maternity leave. Choose your state from our drop-down menu:
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 a 12-month period for certain qualifying reasons.
Currently, the State of Colorado provides eligible employees with up to 480 hours of Family Medical Leave and up to 40 hours of state family medical leave based on a “rolling” 12-month period measured backward from the date an employee begins using FMLA leave.
The Connecticut Family Medical Leave Act (CFMLA) gives employees the right to take up to 16 weeks off in any 24-month period for a serious health condition, which includes pregnancy. However, the CFMLA applies only to employers with at least 75 employees. Employees are eligible for leave only if they have worked for the employer for at least a year and for at least 1,000 hours during the 12 months immediately preceding their leave.
District of Columbia (D.C.)
Washington, D.C., requires employers with at least 20 employees must allow eligible employees to take up to 16 weeks of family leave plus 16 weeks of medical leave in any 24-month period. Employees must have worked at least 1,000 hours in the past 12 months to be eligible.
Hawaii employers must allow employees who have worked at least six 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.
Employers in Iowa with at least four employees must allow eligible employees to take time off for disability relating to pregnancy, childbirth, or related conditions. Unless the employee is otherwise entitled to sick leave, disability leave, or other time off, the employer must allow the employee to take leave for the period of time they are unable to work (up to eight weeks).
State of Kansas employees with a minimum of 180 days of prior employment shall be eligible for eight weeks of paid leave (at 100% of their salary) to care for and bond with their newborn.
Kentucky employees are eligible for up to 12 weeks of leave in a 12-month period for bonding with a new child.
Employers in Louisiana with more than 25 employees must give eligible employees time off for disability relating to pregnancy, childbirth, or related conditions. Employers must provide up to six weeks off for normal pregnancy and childbirth, and up to four months off for more disabling pregnancies.
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.
Employees in the State of Maryland are eligible for six weeks of unpaid leave to care for their newborn.
Employers in Massachusetts with at least six employees must give eligible employees up to eight weeks off for the birth or adoption of a child.
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.
All Montana employers must allow employees to take a reasonable leave of absence for pregnancy. Employees are entitled to be reinstated to the same or an equivalent position unless the employer’s circumstances have changed so much that it would be impossible or unreasonable to do so.
Employers in New Hampshire with at least six employees must allow eligible employees to take time off work if they have a disability relating to pregnancy, childbirth, or related conditions. Employees are entitled to be restored to the same or a comparable position when they are able to return to work unless business necessity makes this impossible or unreasonable.
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.
Employers in the State of New York must provide up to 12 weeks of paid family leave for their employees to care for a newborn child. Employees qualify for paid leave after working 20 hours a week or more for a consecutive 26 weeks.
Organizations in Oregon with more than 25 employees must adhere to state maternity leave laws. Additionally, employees must have worked at least 90 days to qualify and the law covers birth or adoption of a child, prenatal care, and pregnancy disability. Employees can take up to 12 weeks for pregnancy disability plus 12 weeks maternity leave (up to 24 weeks total in one year). An employer who employs both parents can limit leave to one parent at a time.
Rhode Island has a state temporary disability insurance program, funded by withholdings from employees’ paychecks. Eligible employees who are unable to work due to a temporary disability (including pregnancy and maternity leave) can receive partial wage replacement for up to 30 weeks. Rhode Island also offers up to 13 weeks, compared to FMLA’s 12 weeks. Employers with 50+ employees must participate.
Tennessee employers with at least 100 employees at the same job site where the employee works must give an eligible employee up to four months off for pregnancy, childbirth, nursing an infant, and/or adoption.
Employers in Vermont with 10+ employees must provide 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.
An employee HR tool like Zenefits makes it easy to add your leave policies to your employee handbook, ensuring compliance with individual state laws, and lets employees sign all necessary company documents electronically. With Zenefits, employees can onboard entirely online—including signing offer letters and policies, filling out tax forms, and enrolling in benefits—all before their first day.
When Maternity Leave Is Required
Two main factors affect whether you are required to provide maternity leave: the size of your company and your business’ location.
FMLA Affects Companies With > 50 Employees
If your business has 50 or more employees, you are required to comply with the federal Family and Medical Leave Act (FMLA), part of the federal labor laws. FMLA requires businesses to provide up to 12 weeks of unpaid maternity leave. If you employ fewer than 50 employees, there is no federal law requiring you to provide maternity leave.
Pregnancy Discrimination Act Affects Companies With > 15 Employees
Even if maternity leave is not required because of your small company size (under 50), if your company has 15 or more employees, you must abide by the federal Pregnancy Discrimination Act. 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 the option to your pregnant employee to work from home 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 are obligated to 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 allowing them to work 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.
Phases of Maternity That Businesses Need to Know
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. It also applies to employers with 15 or more employees, but we recommend all employers follow the guidelines as a best practice.
The PDA prohibits discrimination against employees and applicants on the basis of “pregnancy, childbirth and related medical conditions.” For example, if you previously provided leave for an employee with a temporary disability like a broken arm or cancer, you’ll need to offer the same sort of time off and/or flexibility to your pregnant employee.
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 anti-discrimination legislation as the employee who has been with you for 10 years. Even though your employee is new, they should be treated equally to 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 one similar. 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 are:
|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
If you need to terminate a pregnant employee, you will want to have thorough documentation of any performance issues, so you can defend yourself in a potential lawsuit if they claim wrongful termination. However, we recommend you consult your attorney.
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 that they will have their 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 truly 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 leave that range up to the employee and simply state that the employee can take “up to 16 weeks,” which is the maximum generally offered by small businesses.
- Offer Remote/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.
Administering Your Maternity Policy
After developing your maternity leave policy, you should 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.