Employers Still Required to Provide Unpaid and Work-Free Maternity Leaves

Yahoo!, Twitter, Facebook and every possible media outlet have been aflutter with praise and criticism since newly appointed Yahoo! CEO Marissa Mayer announced to Fortune magazine that she is pregnant and taking a “few weeks” of maternity leave and will be “working throughout it”.  Though this may be heartening for Yahoo! investors, the typical employer is reminded that its employees are not Mayer and are not likely to follow in her footsteps.  Rather, employers must remember that there are federal and state laws that require employers to provide protected leave for many of their employees.  Here are five important reminders:

Reminder #1:  “Leaves” require a return to work.

The term “leave” is a bit misleading, as the key is “protected” leave, which is the right to take a leave of absence and  return to his or her job.  Protected leave also means that during the leave, no work is to be done or requested of the employee.

Reminder #2:  Leaves may be doubled or tripled for multiple births. 

In Massachusetts, a full-time, female employee who has worked at least three (3) consecutive months as a full-time employee or has completed the “initial probationary period set by the terms of her employment” is entitled to take up to eight (8) weeks of unpaid leave in a twelve (12) month period for the birth or adoption of a child and return to her job.  Under the Massachusetts Maternity Leave Act (MMLA), the employee is entitled to eight (8) weeks for each child, so for twins, for example, an employee would be entitled to sixteen (16) weeks of leave and still be entitled to return to work.

Reminder #3:  In addition to state laws, don’t forget Federal laws protecting male and female employees. 

For those employers with 50 or more employees, the federal Family and Medical Leave Act of 1993, as amended (FMLA), entitles an employee, regardless of gender, who has worked for 12 months and 1250 hours in the preceding 12 months, to return to work after taking a leave of up to twelve (12) weeks for the birth or adoption of a child.  The U.S. Department of Labor (DOL) has recently issued the publication entitled, “Need Time? The Employee’s Guide to The Family and Medical Leave Act,” informing employees about the basics of the FMLA.  Employers may wish to consider using it with employees when explaining FMLA leaves.  Fellow employment lawyer, Jeff Nowak, posted a great summary of the guide and the DOL’s webinar introducing the guide on his blog, FMLA Insights.

Reminder #4:  Legal obligations apply after the birth of the child. 

Once the child is born or the adoption completed, additional leaves and protections related to the care and nurturing of a child are applicable.  For example, the Massachusetts Small Necessities Leave Act (SNLA) entitles a parent to take up to a total of twenty-four (24) hours during a twelve (12) month period to attend to regular doctor’s appointments or school meetings for a child.  Additionally, the Patient Protection and Affordable Care Act (PPACA) amended Section 7 of the Fair Labor Standards Act (FLSA) to entitle a nonexempt employee to take reasonable breaks, for up to one (1) year after the birth of the child, each time she must express breast milk for her nursing child, and the employer must provide a place within the workplace, “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” for such a break.

Reminder #5:  The leave-and-return-to-work entitlement is separate from methods of compensation during the leave.

Many an employer confuses the leave-and-return-to-work obligations with potential means of compensating employees during their leaves.  For example, short term disability insurance may provide for pay during a leave under the FMLA.  However, simply completing the short term disability insurance paperwork does not satisfy the employer’s obligations to designate a leave of absence as authorized leave under the FMLA, nor justify requiring an employee to work when the short term disability insurance coverage has run out.  Keep in mind that all of the leaves and breaks described above do not have to be compensated.  Nonetheless, employers may want to require employees to use any accrued paid time off (including vacation and sick time) during a maternity leave, to the extent permitted by state and federal law, not only to allow the employee to have some pay during leave, but also to minimize vacation time taken after an employee returns from leave.  Additionally, health insurance coverage cannot be stopped or decreased by virtue of an employee being on one of the leaves described above.

So, though the hiring of such a high-profile CEO while she is pregnant is inspirational, let us not forget that Marissa Mayer’s declaration of de minimus maternity leave for herself does not erase the many overlapping laws and regulations that require employers to provide typical employees with much longer – and work-free – leaves for the birth or adoption of a child.

Leave a Reply