1. Legal Technology, Content and Solutions
  2. Insights
  3. Articles
  4. FMLA maternity leave is broader than many people think

article

Unpacking the FMLA: Maternity leave is just the beginning

Whether you are a business owner or an employee, you might have many questions about the Family and Medical Leave Act (FMLA). For instance, does it allow new parents to take time off from work following the birth or adoption of their new child?

Whether you are a business owner or an employee, you might have many questions about the Family and Medical Leave Act (FMLA). For instance, does it allow new parents to take time off from work following the birth or adoption of their new child?

The short answer is yes. The FMLA typically does provide up to 12 weeks of time off for new parents who work for public agencies or companies with 50 or more employees, assuming the parents meet all the other necessary requirements.

But whether you refer to it as FMLA maternity leave or simply parental leave, it's possible you have several misconceptions about how this important law applies to new parents — especially since it is so complex. Read on if you are interested in separating fact from fiction.

Misconception #1: Only the parent who gives birth can take FMLA leave

The facts: You might think FMLA only applies to a person who actually gives birth, but that couldn't be further from the truth. Granted, in recent years, the law has expanded its definition of “spouses” in order to become more inclusive, but it has never applied only to a birth-giving person. FMLA leave for a non-birth-giving parent is also available, as is leave for several other types of parenting roles, which may include:

  • Unmarried co-parents
  • Adoptive parents
  • Foster parents

It isn't as widely understood that taking a leave of absence from work is possible for multiple kinds of parenting roles. The reality is, the law applies more widely than many people know.

Misconception #2: FMLA rights are only for biological parents

The facts: The FMLA covers many types of parents — whether biological, adoptive, or foster — as long as some basic criteria are met:

  • The new parent/employee works for a covered employer, which usually includes a public agency or a company with 50 or more employees.
  • The new parent/employee has been working for the employer for 12 months.
  • The new parent/employee has worked at least 1,250 hours during the 12 months before the leave starts.

If these conditions are met, it usually means that a non-biological parent can take time away from work to welcome a new child into the home and help them adjust, just as any birth-giving or biological parent could.

Maybe you're a new parent seeking leave or you're the employer of that parent. Either way, it's important to understand that the FMLA's maternity leave doesn't just cover birth-giving parents.

Misconception #3: Parents can take separate 12-week leaves for recovery and bonding times

The facts: The FMLA provides 12 weeks of absence in total, no matter the reasoning behind the leave. For example, if a birth giver needs eight weeks of medical recovery time and then seeks FMLA maternity leave, there are only four weeks left to use. In other words, a person can't take a separate medical leave of absence after giving birth and then add a 12-week FMLA leave for bonding time and caregiving.

The designation is even more challenging for unmarried people. An unmarried partner may be ineligible under the FMLA to care for the expectant mother during pregnancy. However, FMLA leave may be an option for an unmarried partner after the child is born.

Additionally, married couples who are employed by the same company or institution may be required to share the total 12 weeks between them.

Misconception #4: FMLA leave of absence will be fully paid

The facts: The FMLA doesn't provide paid leave. And even though some employers and several states have decided new parents should get paid leave, the FMLA doesn't guarantee it.

But there may be additional options available. For example, depending on the circumstances, a new parent may be able to apply for disability pay or use sick days to cover the post-partum rest period and vacation time for additional time off. It's important to note, however, that disability pay may not cover a new parent's entire missed paycheck — meaning they may still experience a significant cut in pay while on FMLA leave, even if they are eligible for disability pay.

Demystifying the FMLA can provide clarity

The FMLA can be tricky to understand since it's full of caveats and complicated legal avenues. That's why it is important to understand all the ways the law applies. A major takeaway from breaking down the FMLA laws piece by piece is that there are built-in accommodations for multiple types of families and individuals.

The content appearing on this website is not intended as, and shall not be relied upon as, legal advice. It is general in nature and may not reflect all recent legal developments. Thomson Reuters is not a law firm, and an attorney-client relationship is not formed through your use of this website. You should consult with qualified legal counsel before acting on any content found on this website.


Want even greater insight? Try Practical Law.

Access a comprehensive collection of employment-related legal resources, including how-to guides and checklists created by our expert attorney-editors