Human Resource Blog

New Mexico Maternity Leave

To make scheduling easier, I’d like to institute a company policy that all pregnant women have to start maternity leave 1 month before their due date, and end it 2 months after their due date. Is there any reason why I shouldn’t do this?

The mother and the doctor, not the employer, decide the timing of a maternity leave.  So you do not have the right to set up the kind of schedule you’re proposing. In fact, it would be a violation of federal law.

Two laws apply – the Family and Medical Leave Act of 1986 (FMLA) and the Pregnancy Discrimination Act (PDA).

The first guarantees a certain amount of leave, and the second specifically addresses the right of a woman to work as long as she wishes to before the birth, and to return to work as soon after a pregnancy as she chooses.

Let’s take the FMLA first. It entitles the worker to as much as 12 weeks of unpaid leave around the time of the birth of the child. The employee’s job is protected during that leave.

It also guarantees that the mother and the doctor, not the employer, decide on the timing. Consider the fact that there may be both medical and personal reasons involved. A woman may wish to work as long as possible before birth, to allow for a long period of leave to be with the newborn baby. On the other hand, there may be complications during the pregnancy. Those complications may require that the mother-to-be take more time off before the due date. Finally, some women may decide that it’s best for them, personally, to take more time off prior to the birth.

Now for the PDA. It mandates that a pregnant worker be allowed to work as long as she is physically capable. Under the law, you as an employer cannot forbid her from returning to work for any given length of time after childbirth. As long as the mother can produce a doctor’s release saying she is physically capable of returning, she has the right to return to the job.

Under the PDA, employers must treat maternity leave just as they would any other form of temporary disability. You have the right, however, to require a doctor’s statement before allowing the employee to return to work. JH