Tuesday, January 5, 2016

My Employee Just Gave Birth. What Do I Need to Know?

Yahoo’s CEO, Marissa Mayer, and Facebook’s CEO, Mark Zuckerberg, have been in the news recently for the amount of maternity/paternity leave they plan to take. Bucking traditional norms in which maternity leave is generally longer than paternity leave, Mayer plans to take just two weeks of maternity leave, while Zuckerberg plans to take two months of paternity leave. This story probably led many employers to wonder: how much time off do I have to give an employee for maternity or paternity leave? 

The answer depends on the size of your company and where you live. If your company has 50 or more employees, or you are a federal, state, or local government employer with more than 50 employees, then you are required to provide employees who have worked at least 1,250 hours over the previous 12 months with up to 12 weeks of maternity or paternity leave under the Family and Medical Leave Act (FMLA). The FMLA requires employers to provide the same amount of leave to both men and women for the birth of a child. It does not, however, require an employer to pay an employee during maternity/paternity leave. 

An employee, however, may use paid vacation time during maternity or paternity leave. The employee is still only entitled to 12 weeks of leave, with the remaining non-vacation time being unpaid. An employer can also require an employee to use vacation time during maternity/paternity leave. 

Additionally, an employer must continue to provide an employee with health insurance coverage and benefits during maternity/paternity leave. This means that if an employer pays a portion of an employee’s premium, it must continue to do so while the employee is on maternity/paternity leave. An employer, however, does not need to provide other benefits, such as the accrual of seniority or paid leave, to an employee on unpaid maternity/paternity leave. 

Once an employee returns to work, he or she must be restored to the same position or one equivalent to it in terms of pay and benefits. An employer cannot demote, fire, or punish an employee for taking maternity/paternity leave. 

If an employer has fewer than 50 employees, in most states, including Illinois, it does not have to provide its employees with maternity/paternity leave. It is not required to hold open the employee’s position and so may replace that employee. One significant caution, though, is that an employer should treat a pregnant employee the same as it would treat any other employee who required time off for a medical condition. 

California, New Jersey, Massachusetts, and Rhode Island provide for paid maternity/paternity leave. President Obama also recently provided federal employees with six weeks of paid maternity/paternity leave. Momentum behind the movement to expand paid maternity/paternity leave has been growing, so it is possible that more states, and possibly even the federal government, will pass laws providing for it. 

We recommend that employers have clear policies on maternity/paternity leave and that they make employees aware of them. Employers may want to contact an experienced attorney for help with creating such policies.