Human Resource Blog

Oklahoma maternity leave

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I have a question about the legal leave for maternity in my state of Oklahoma. Everywhere that I have read it talks about the FMLA law that states that companies who have 50 or more workers within 75 miles must allow eligible employees to take off up to 12 weeks of leave – unpaid — each year. What I want to know is, what about the companies that have as little as 20 workers? One of our employees is having a baby by a surrogate, so she is interested in leave for baby bonding. The company I work for has around 15-20 workers at the moment. What amount of time is an employee entitled to take off?. I realize that this leave will be unpaid, and thats fine. I also would like to know if an employee is entitled to the same pay as she receives now AND medical insurance and benefits such as vacation time accumalated is going to stay the same. She has been working for the company for 12 years and has 5 weeks vacation time. Can the employee be forced to be terminated and rehired, or must she be reinstated? Can she use the 5 weeks of vacation as leave? Any help you can give me is appreciated.

Oklahoma does not have any family leave or maternity leave law, so legally this employee is not entitled to even one day of maternity leave. Sorry, and we know that is not the answer you or your employee was hoping for, but thats the situation. Because the company is too small for the federal FMLA or Family and Medical Leave Act to apply, the employee is not entitled to any leave.

The employer may permit this worker to take some time off, but that is entirely a matter of company policy. There is no law that the employer must do so. The employer should also be aware that they are setting a precedent and if they allow this employee to take time off, they would likely have to permit other new parents to do so as well. This is true whether the child is a newborn, newly adopted or newly placed in foster care.

The employee has accumulated 5 weeks of paid vacation. The companys usual vacation policies apply. If employees are not normally permitted to take all 5 weeks of vacation at the same time, then there is no obligation to do so with this employee. In fact, again, doing so will set a dangerous precedent that other employees must be permitted to use all 5 weeks of vacation at the same time in the future, for any reason.

If this employee was pregnant herself, she would be entitled to the same medical leave (if any) and benefits that the employer normally extends to employees, during the short term disability from childbirth. This is under the federal Pregnancy Discrimination Act or PDA. However, in this case the employee is not pregnant (she is using a surrogate) and therefore will not be on short term disability.

Yes, the employer can terminate this employee if she takes time off. It is entirely up to the employer whether or not to rehire the employee when she wants to return to work. She is not guaranteed the same salary, benefits or seniority that she now enjoys, if she is hired back.

If the employer has 20 or more employees with group health insurance coverage, the employee would be eligible to extend her insurance coverage for up to 18 months after termination, at a higher cost under COBRA. However, if the employer is smaller no such benefit is required. Read more about COBRA at http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.HTMl