Does My Employer Have to Let Me Take Maternity Leave?

If your employer has more than 50 employees, then the most likely answer is yes.  If your employer has less than 50 employees, then your employer likely will not have to provide you with maternity leave if they do not provide a leave of absence for other employees’ non-pregnancy-related medical conditions.

Family Medical Leave Act

The Family Medical Leave Act is a federal law that provides eligible employees with job protection and unpaid leave for up to 12 weeks a year for a “qualifying reason” (defined below).  There are a number of caveats though.  First, you employer is only covered by the law if it has more than 50 employees in the previous or current year.  Second, you must have been employed by your employer for at least 12 months.  Finally, you must have worked more than 1250 hours in the prior 12 months.  If all these requirements are met, you are likely eligible for FMLA leave.

Qualifying Reason

If the above requirements are met, you should be entitled to 12 weeks of unpaid leave in each calendar year for the following reasons:

  • to care for a new child, whether for the birth of a son or daughter, or for the adoption or placement of a child in foster care;
  • to care for a seriously ill family member (spouse, son, daughter, or parent) (Note: Son/daughter has been clarified by the Department of Labor to mean a child under the age of 18 or a child over the age of 18 with a mental or physical disability as defined by the American Disabilities Act, which excludes among other conditions, pregnancy and post-partum recovery from childbirth);
  • to recover from your own serious illness;
  • to care for an injured service member in the family; or
  • to address qualifying exigencies arising out of a family member’s deployment.

Anti-Discrimination Laws

Even if the FMLA does not apply to you or your employer, you may still be protected by federal, state and local anti-discrimination laws which prohibit discrimination on the basis of pregnancy.  These laws prohibit an employer from treating employees differently simply because of their pregnancy or from treating pregnancy differently than other medical conditions.  For example, if your employer has permitted other employees to take a leave of absence because of other medical reasons, then they may be required to allow you to take a short leave of absence to recover from your pregnancy and delivery.

As with most employment law issues, it is important that you speak with an attorney that can evaluate all of the facts and circumstances surrounding your situation and provide you will legal advice.  If you would like to be connected with an attorney that may be able to help you, contact us here.

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About Publius

"Publius” a former labor and employment litigation attorney in New York City with experience representing both management and employees in a broad range of labor and employment matters. As a "reformed" attorney, Publius is looking to provide the people of New York City with information that will educate them as to their legal rights and, if appropriate, connect individuals with attorneys that can assist them.
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