FMLA and maternity leave: What you need to know

Our Ob/Gyn and Maternal-Fetal Medicine offices process dozens of FMLA forms every month. These forms are important for new parents who want to take time off work after their babies are born. This time is vital for moms to recover from labor and delivery and for the family to bond with the new addition.

If you’re not entirely certain what FMLA does – and doesn’t – cover, you’re in good company. Many Texans – and many Americans, for that matter – don’t fully understand it. In fact, I sat down with Beth Aubry, supervisor of the Workers’ Compensation & Leave Administration at UT Southwestern Medical Center, to clarify some of the law’s nuances. And I’m a medical professional!

Time-off policies after a new baby vary widely by company. Some provide voluntary paid family leave, while others offer only the minimum of what is required by law. Talk to the human resources department at your job to understand your benefits and have your spouse or partner do the same so there are no unwelcome surprises.

In the meantime, here is some basic information about FMLA to help as you plan time away from work after the delivery of your child.

What is FMLA?

The Family and Medical Leave Act allows an employee 12 weeks off to care for themselves or a family member with a serious medical condition. FMLA guarantees the employee’s job and insurance benefits during this time. This includes care related to pregnancy – either for prenatal care visits, illness prior to delivery, or for recovery and bonding time after you have your baby.

What determines FMLA eligibility?

There are a few requirements to be eligible for FMLA:

• Your employer must have at least 50 employees. That means small employers are exempt from this program.
• You must have worked at least 12 months in the past seven years for your employer, AND;
• You must have worked at least 1,250 hours in the past 12 months. When counting up your hours, sick days and vacation time do not count – just the hours that you physically worked.

If you are ineligible for leave under FMLA, check with your HR department to see if there are other parental leave programs that you may qualify for. This leave may not come with the same insurance entitlement, but can protect your job. For instance, state employees in Texas are eligible for parental leave if they haven’t met the last two requirements listed above. Unlike leave under FMLA, this leave will only begin after the birth of your child.

If you are terminated before starting your leave, you won’t quality for FMLA. Likewise, if your employer institutes “reduction-in-force” layoffs, your job may not be waiting for you.

Does FMLA require my employer to pay me during maternity leave?

No, it does not. FMLA only requires that your job be available when you return and that your benefits continue. Whether you will be paid and how much you may be paid during this time varies from employer to employer. For example, your company may offer short-term disability, which may pay your salary or a portion of it during medical leave, including childbirth and post-partum recovery time – but doesn’t cover bonding time with your child.

You may be required to use your sick leave and vacation hours to cover time off if you want to continue to receive a paycheck. If you don’t have enough hours to cover the entire time off, the balance of the leave may be unpaid.

How can FMLA leave be used?

Typically, FMLA time is used as a single chunk of time. So for the birth of a child, it would start with delivery and continue for 12 weeks. The assumption is that roughly half of the time is considered recuperation from childbirth, while the remainder is bonding time with your child.

The FMLA form you submit to your employer will have a start date for the period of time you are “incapacitated,” typically the day of delivery. The exact dates of your leave will be adjusted once proof of birth is given to your employer. Don’t worry if you use your due date for the form, but your little one shows up a few days late – you will get credited for those days that you weren’t out on leave!

FMLA doesn’t usually include time off before the birth. That requires your doctor to certify a medical reason for you to stop working before the delivery. Common reasons that necessitate starting leave early include threatened premature labor or increased blood pressure. If your doctor orders you to stop working after you have submitted your form stating you expect to work until delivery, you will update the request, reflecting the new date that your leave began.

Many women come to our office with a request to start FMLA before they have the baby. Unless there is a medical indication, this typically isn’t approved. If you want to ensure a week off before birth, think about using some of your vacation time for those days – you can always decrease your leave after delivery a little to make up for the time taken before delivery, but still are eligible for 12 weeks off after the birth of your child. Check with your obstetrician about the way they handle requests for starting maternity leave.

Intermittent FMLA can also help cover time off for prenatal visits or even some days when morning sickness cause you to be late or miss a few days. This might be useful if your employer has strict policies about absences and late arrivals. You cannot be penalized if you use intermittent FMLA for these absences. However, this time away from work will be included in the total 12 weeks of leave. Again, I recommend checking with your human resources department about your employer’s specific policies around pregnancy-related late arrivals or absences.

Does FMLA cover leave for your partner?

Spouses and partners are eligible for FMLA after becoming a parent to help the mother recover and to bond with the new baby.

There are a few important nuances to understand related to time off for a spouse or partner. First of all, spouses and partners are not treated exactly the same under the Family and Medical Leave Act. So the critical first step is to call or meet with human resources at their place of employment so he or she understands what is available for them.

Your child’s other parent will be eligible to take time off to bond with the baby – but if you aren’t legally married, the entire 12 weeks will be considered “bonding” time. If you are married, the leave will split and some of the time allocated toward helping you recover with the remainder designated as “bonding” time. In both scenarios you are eligible to take 12 weeks, but employers may have different policies on what type of accrual (for example sick days versus vacation leave) can be used for each type of leave following the birth of a child.

If you and your spouse work for the same employer, you may have to share the 12 weeks. We see this often with our patients since we are a state institution. They may work for different sectors or in different offices, but they are both under the umbrella of the same employer. If your spouse wants to stay home for two weeks immediately after the birth, you will only get 10 weeks of FMLA leave. The time off can overlap so you can both be home at the same time, but there can only be 12 weeks total between the two of you.

I admit, I don’t think this is fair. To compare, if you both needed time off to address a “serious health condition” other than the birth of a child, you each would be eligible for 12 weeks off. Adding a new member to your family is a big deal, and should be given equal consideration. But check with your employer – some may have a more lenient stance on this rule.

Typically leave under FMLA isn’t intermittent so your spouse or partner may not be able to break up his or her time off. This means they might not be able to go back to work while someone else stays to help you care for the baby, and then take another period of time off later. The employer can agree to allow leave to be used like this, but they aren’t required to allow it. Make sure your partner asks their employer in advance about their policy on this issue so you can plan your post-partum time appropriately.

As you can see, there are many variables when it comes to taking maternity leave. Talk to your and your partner’s human resources departments about whether you qualify for FMLA leave and about any other family leave benefits eligibility. More information about the Family and Medical Leave Act is also available from the U.S. Department of Labor.

One last piece of advice: Don’t wait until the last minute to complete your FMLA paperwork. It may take a couple weeks for the office to complete it – remember, yours isn’t the only form they’re working on!

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