Human Resource Blog

Eligibility for Maternity Leave/FMLA

Please help me with this, because I’m new to HR. If maternity leave and FMLA are the same, then if I understand correctly that an employee that has been in a job position for less than a year is not entitled to any leave of absence unless they have accumulated vacation, medical days? It just doesn’t seem right to me. That someone who is not released to go back to work until after a six week check-up is not entitled to something. Please verify if this is correct. Thanks.

That is correct. Under federal law, maternity leave is granted under FMLA, the Family and Medical Leave Act. The FMLA applies only to larger companies, and only to employees who have worked for the employer for at least 12 months (although they need not be consecutive months.)

When FMLA does not apply, an employee can be terminated for taking medical leave in excess of his or her paid leave — even a few days of excess medical leave. This is true, whether the employee is absent due to a heart attack, cancer or childbirth.

Several states would agree with you that this is not enough protection for employees. That is why states like California and Massachusetts have family leave laws at the state level, that cover more employees, smaller employers and provide more leave. Some of these states also provide short term disability benefits to partially replace the income lost when the employee cannot work.

Keep in mind that when the FMLA was passed in 1993, it was a huge improvement for employees. Prior to that time, even an employee who had been with the same company for 10 years could be fired if she missed one week of work for a serious illness, childbirth, or to care for an immediate family member with a serious illness. It was not an idle threat — employees were routinely fired for missing a week or two of work for a heart attack or cancer. Women simply assumed that becoming pregnant meant they would lose their current job.

If the questions posted by our readers are any indication, we suspect that FMLA will be exteneded to all employees, and perhaps a short-term disability program will be introduced nationwide, within the next 10 to 20 years. However, currently, maternity leave is available nationwide only through FMLA.