Parental leave is any leave taken by an employee for the birth, adoption or placement of a child. Parental leave can be taken as a form of Family Medical Leave, or any other leave provided by the employer. Pregnancy, or maternity leave is a form of parental leave taken either for a disability related to pregnancy or childbirth or the time taken after birth to care for a newly born or newly placed child. Men can also take parental leave to care for a newly born or newly placed child, this is often referred to as paternity leave.
There are two types of leave which are often referred to as pregnancy or maternity leave:
- disability or medical leave, which consists of the time a woman is unable to perform work because of pregnancy, childbirth and their aftermath, and
- Parental leave, which consists of the time after birth or adoption during which a parent (of either sex) cares for the child. When fathers take this leave it is often referred to as paternity leave.
Different legal standards apply to each kind of leave.
The federal laws that prohibit pregnancy discrimination and provide for disability and parenting leaves are Title VII of the Civil Rights Act of 1964, which includes the Pregnancy Discrimination Act of 1978, (see § 2000e(k) for the specific language concerning pregnancy) and the Family and Medical Leave Act of 1993.
Title VII covers many forms of discrimination you may encounter because of your sex in decisions about hiring, firing, work assignments and conditions, promotions, benefits, training, retirement policy and wages. In 1978, Congress passed the Pregnancy Discrimination Act (P.D.A.) (see §2000e(k) of Title VII) amending the law in order to clarify that discrimination based on pregnancy is a form of sex discrimination. Title VII prohibits employers from treating pregnant women or temporarily physically disabled new mothers differently from other temporarily sick, injured or disabled employees, including discriminatory leave practices.
In 1993, Congress enacted the Family and Medical Leave Act (FMLA) . The FMLA guarantees an employee, male or female, who has been working at least a year for a company with 50 or more employees the right to job-protected, 12-week, unpaid leave to recover from a serious medical condition — including pregnancy — or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. Under the FMLA, you have the right to take this 12 week unpaid leave every year, and to have your health benefits maintained during your leave. The FMLA also guarantees that at the end of the leave you will be given the same job you left or another job equivalent in pay, benefits and other terms and conditions. For more information about FMLA, see our page on family leave.
A denial of pregnancy leave may violate Title VII, the Family and Medical Leave Act, or both laws, depending on whether an employee qualifies for protection under each law and the nature of the employer’s conduct.
Title VII covers pregnant women whose physical condition qualifies them for disability leave under company policy, and who work for employers with 15 or more employees, labor unions, or employment agencies.
The FMLA covers employees, male or female, who have been working at least a year for employers with 50 or more employees, and allows these employees to take unpaid leave to care for a newborn or newly-adopted child or for certain seriously ill family members, or to recover from their own serious health conditions. For more information about FMLA, see our page on family leave.
Although smaller employers are not required to offer pregnancy or other disability leave under Title VII or the FMLA, they may be required to do so by state law. Or, the company itself may choose to offer paid or unpaid disability leave, either voluntarily or through a union contract.
It depends. As to the time a woman is unable to perform work because of pregnancy and childbirth, the law requires only that an employer treat pregnancy the same way that other temporary disabilities are treated. If employees are allowed to use leave (such as sick leave or short-term disability leave) when temporarily disabled by illnesses or injury (such as broken limbs, minor surgery, or the flu), due to an inability to work and/or need for medical care, then pregnant employees are entitled to take leave during the time they are similarly disabled.
However, employers are not required to treat pregnancy more favorably than they treat other temporary disabilities. If an employer does not provide leave for temporary disabilities and temporarily disabled employees must take leave without pay, be docked for absences, and/or face termination after a certain number of absences, then pregnant employees may risk the same consequences for pregnancy-related absences.
The law also doesn’t prohibit employment decisions based on an employee’s conduct that may be caused by pregnancy. For example, an employer doesn’t have to treat an employee who was late due to morning sickness any better than an employee who was equally late for a different health reason.
However, employers of 50 or more employees may be required to comply with the FMLA and allow employees to take unpaid leave for pregnancy, childbirth, and child-rearing following the birth of a child.
Leave to bond with a newborn child or newly placed (by adoption or foster care) must conclude within 12 months after the birth or placement. FMLA intermittent leave can be used for this purpose, but must be approved by your employer.
If the newly born or newly placed child has a serious health condition, the employee has the right to FMLA leave to care for the child intermittently if medically necessary and such leave is available.
Although some companies tell pregnant women that they must leave work a specified amount of time before their due date, it is illegal for an employer to force you to go on maternity or disability leave while you are still able to work. Pregnant employees must be permitted to work as long as they are able to perform their jobs. If you have been absent from work as a result of a pregnancy-related condition and you recover, your employer may not require you to remain on leave until the baby’s birth. Also, an employer may not have a rule preventing you from returning to work for a predetermined length of time after childbirth.
If you are unable to perform certain aspects of your job, such as heavy lifting or working with toxic chemicals, your employer must accommodate you to the same extent it accommodates other temporarily disabled employees, such as providing “light duty,” shifting certain job duties to other employees, or permitting transfer to a vacant position. For example, if a coworker disabled by a back injury subject to a lifting restriction was shifted to another position not requiring heavy lifting or was given modified job duties such that lifting was no longer required, a pregnant employee should be similarly accommodated. In the recent case of Young v. UPS the Supreme Court held that a pregnant woman can make a showing of discrimination by proving that she sought an accommodation, that the accommodation was denied, and that her employer accommodated others similar in their inability to work. An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work, but may use any procedure used to screen other employees’ ability to work. For example, if an employer requires employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
If your company grants leave to other temporarily disabled employees, it must also grant you leave for the period of time you are disabled by pregnancy and its related conditions. Unfortunately, if other temporarily disabled workers are not entitled to leave or benefits, then neither are pregnant women or temporarily physically disabled new mothers, unless they are entitled to leave under the Family & Medical Leave Act. Nothing in Title VII requires an employer to provide disability leave or pay medical or hospital coverage to any worker.
Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave. Any leave, seniority, or reinstatement rights other workers get from your employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled.
While taking parental leave, the FMLA requires that employees are returned to the same job, or one that is nearly identical. For more information on leave or reinstatement rights under the FMLA, see our page on family leave.
Any benefits, including paid leave, other workers get from your employer when they cannot work for health reasons should be available to pregnant women and new mothers who are temporarily physically disabled. If, for example, employees who have heart attacks or surgery receive disability pay, it must also be provided for women who are temporarily disabled due to childbirth.
However, neither Title VII nor the FMLA require an employer to offer paid leave during or after pregnancy. Depending on your company’s policies and accumulated leave time, you may be eligible to use sick leave, vacation leave, or other leave time to maintain your salary while you are on pregnancy leave.
Visit our state and local paid sick leave page for information on your state’s paid sick leave laws.
When calculating vacation time, seniority, pay increases, or any other tenure-related benefits, an employer may not treat time spent on parental leave differently than time spent on leave for other reasons. If you are eligible for leave under the FMLA, then your employer is required to maintain your health insurance benefits during the time you take FMLA leave.
As noted above, there are two types of leave which are often referred to as pregnancy or maternity leave: 1) disability or medical leave, and 2) parental leave, used for caring for a child.
While a man cannot take disability or medical leave due to pregnancy for himself, under the FMLA he can take leave to care for his spouse suffering from a disability due to pregnancy or childbirth. A man may be eligible for parental leave depending on eligibility for FMLA, other legally guaranteed leave and/or company policy.
An employer who grants parental leave to women would also be required to offer such leave to men who similarly wish to take leave for child-rearing purposes. Failure to provide such leave to men in circumstances where it is provided to women could constitute sex discrimination under Title VII, a violation of the FMLA, and/or a violation of other laws, depending on the source of employees’ legal entitlement to leave.
If you are temporarily physically or mentally disabled by the loss of your pregnancy through, for example, miscarriage or abortion, you would be legally covered to the extent that your employer covers other temporary physical or mental disabilities, or you are suffering from a serious health condition entitling you to medical leave under the FMLA.
Unfortunately, if other temporarily disabled workers at your company are not entitled to leave or benefits, then neither are women who are or were pregnant. Nothing in Title VII requires an employer to provide disability leave or benefits.
You also may be denied leave if you are not disabled according to your medical provider and you do not have any other form of leave, such as vacation time, that your employer will permit you to take.
When you request a leave, do so in writing, explaining the reason for leave and how long a leave you need. Keep copies of everything you send and receive from your employer, as well as copies of doctor’s notes and any other medical documentation.
If you continue to be denied leave, you may want to file a grievance. If you are a union member, you may be able to file a formal grievance through the union. Try to get a shop steward or other union official to help you work through the grievance process. Some employers have policies for handling a dispute regarding leaves. You may be able to resolve the dispute at your job internally. Find out what the policies are, by looking in your employee manual or other sources of personnel policies. Your company’s human resources department may be able to help.
However, even if you file a grievance with your employer, the deadlines to file in court or with an administrative agency still apply, so be sure not to miss them.
The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to an individual’s pregnancy in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination (see question 15 below).
The Department of Labor is the agency of the federal government responsible for investigating charges of family and medical leave discrimination in workplaces of 50 or more employees. Some states have their own family and medical leave laws.
Victims of sex discrimination (including pregnancy discrimination) can recover remedies that include:
- back pay;
- front pay;
- compensatory damages (emotional pain and suffering);
- punitive damages (damages to punish the employer);
- other actions that will make an individual “whole” (in the condition he or she would have been but for the discrimination).
Remedies also may include payment of:
- attorneys’ fees;
- expert witness fees; and
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.
Your state law may allow for greater or different remedies than federal law.
For information on remedies for a violation of the Family and Medical Leave Act, click here.
For more information see our FMLA page.