Ask The Lawyer, Is it legal to cut off my maternity leave?
PROBLEMATIC PREGNANCY LEAVES WORKER WITH NO TIME OFF
QUESTION: I had some complications with my pregnancy, and had to go on bed rest in my eighth month. My boss said I could take time off under the Family and Medical Leave Act while I was unable to work. I recently gave birth to a little girl, and asked for 12 weeks maternity leave, but my employer told me that the FMLA and maternity leave are the same thing, and I only had six weeks left – and all of it is unpaid. So, is it legal to cut off my maternity leave because I was too sick to work before my baby was born, and isn’t maternity leave supposed to be paid?
ANSWER: The answer to your first question is a probable yes: Under the circumstances you describe, additional leave should have been made available to you. Leave for a disabling physical condition (like the complications of pregnancy you experienced) may be granted as an accommodation under the Americans with Disabilities Act, and, under the Pregnancy Discrimination Act, workers who are pregnant must be treated the same as those who not pregnant and who suffer a similar temporary disability. If additional leave time is allowed for those who are not pregnant, a similar period of leave should be allowed for you.
The answer to your second question is a definite no: There is no law in the United States that requires employers to pay workers for leave taken for the birth of a child and time after the birth to bond with that child. The Family and Medical Leave Act allows an employee to take 12 weeks of FMLA leave “for the birth of a child, for prenatal care and incapacity related to pregnancy, and for her own serious health condition following the birth of a child,” but the leave – like all leave for serious health conditions under the FMLA – is unpaid.
There are also restrictions on who is eligible for leave – the FMLA does not cover all employees. To receive unpaid leave, an employee must have worked at least 1,250 hours in the 12 months preceding the start of the leave, and must have worked for the same employer for 12 months (not necessarily consecutive), and the worker must be one of at least 50 people employed at the worksite, or work within 75 miles of the worksite.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law