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Your rightsA United Nations survey found that out of 152 countries, the United States, Australia, New Zealand, Lesotho, Switzerland, and Papua New Guinea were the only ones one that did not have a national policy requiring paid maternity leave. The majority of countries surveyed provide benefits through social welfare systems, some require the employer to pay, and still others combine both financing sources.
Out of the millions of working women in this country, only one-third of those are working for businesses that have a maternity leave policy and 50 percent have to take their leave without pay, or use a mixed bag of time off from vacation, short-term disability, parental leave, or sick leave.
While it's important for you to be aware of the implications if you're fortunate enough to work for a company with a maternity leave policy, you should also understand your legal rights under state and federal laws in this area. Federal regulations do not guarantee your right to a maternity leave under certain qualifications, and state regulations are not consistent throughout the United States. What is guaranteed is your right to a disability leave if your company has disability leave for other medical situations.
Understanding the Leave Laws and Policies
In order to make sure that you are being treated fairly and getting all the leave benefits to which you are entitled, it is critical that you understand the following laws and policies:
The Civil Rights Act of 1964
Under the Civil Rights Act, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile or offensive work environment.
The Pregnancy Discrimination Act of 1978
This amendment to the Civil Rights Act of 1964 was the first piece of federal legislation that stated clearly you cannot be fired for being pregnant.
- Applies to companies with fifteen or more employees.
- Treats pregnancy, pregnancy-related illnesses, and childbirth on an equal basis with all other medical conditions or short-term disabilities. If, for example, your company offers disability benefits, sick leave, or health insurance to other workers while they're on disability leave, they cannot be denied to you because you're pregnant.
- Employers cannot refuse to hire or promote you, force you to go on leave, or deny you fringe benefits, such as vacation days, seniority credit, or pay increases, while you're on maternity leave.
- If you are temporarily unable to perform your job due to pregnancy, your employer must treat you the same as any other temporarily disabled employee; for example, by providing modified tasks, alternative assignments, disability leave, or leave without pay.
- You must be permitted to work as long as you are able to perform your job.
- 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 your baby's birth.
- Your employer may not have a rule that prohibits you from returning to work for a predetermined length of time after childbirth. And your employer 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.
Fortunately, with the passage of the National Family and Medical Leave Act (FMLA) of 1993, benefits and protection for working families got better.
- Applies to companies with fifty or more employees.
- Allows up to twelve weeks of unpaid leave each year to care for a newborn or adopted child; or a sick child, spouse, or parent; and for personal illness.
- Employees must be given their original position or comparable job upon return.
- Employers must continue to provide health benefits for employees on leave.
- Applies to workers who have been employed full-time for one year or to part-time employees who have worked at least 1,250 hours in the previous twelve months.
- Teachers may be asked to remain on leave until the next school term under certain conditions related to the school calendar.
- Exempts companies with fewer than fifty workers.
- Lets companies deny the benefit to salaried employees within the highest-paid 10 percent of their workforce, if letting the workers take the leave would create substantial and grievous injury to the business operations.
- Permits employers to obtain up to three medical opinions and certifications on the need for the leave.
- If workers do not come back, employers can recapture the healthcare premiums they paid during the leave.
The FMLA doesn't require the leave to be taken by the week or even by the day. If you have an illness that requires treatment several times a week, you could conceivably take your FMLA leave in hour-long blocks. Even though that could drive your employer crazy, if the situation demands it, they are obligated to approve. It's smart to work out a schedule, when possible, that reduces the impact on your employer.
Alert your physician to the situation and ask for help in minimizing the medically necessary leave. Your company's personnel department may be an ally. By giving that office permission to contact your doctor, the official HR spokesperson can have more success than you in getting medical appointments at convenient times.
The law also says that unless the situation is an emergency, you have to give your employer at least thirty days notice that you intend to use FMLA benefits. To minimize resentment created by understaffing, do what you can to make your absence no big deal.
FYI: Both employers and employees say the FMLA is making things better!
Many larger firms actually reported cost savings related to FMLA, mostly from reduced employee turnover and training, and increased productivity and morale. A simple, user-friendly edition of the FMLA can be found on the website of the National Partnership for Women and Families at www.nationalpartnership.org. To inquire by phone, call (800) 669-4000.