Human Resource Blog

Maternity Leave Pay

We are a small business in Texas and have under 20 employees. We have an employee who will be going on Maternity Leave in November. What are we legally responsible for during this time? How long do we have to give her off? Do we have to pay her? Do we continue paying her premium for insurance? This is our first “Maternity Leave” situation so we are clueless. We know since we have under 50 employees we do not adhere to FMLA. Any guidance would be appreciated.

It is easier to understand the whole concept of *maternity leave* if you know that there really is no such thing under state and federal law for small employers. Leave for pregnancy complications and childbirth disability is treated like any other medical condition — cancer, a heart attack, stroke, or having a gallbladder removed. If you have ever had an employee with a medical disability lasting 4 to 6 weeks, you HAVE encountered this problem before.

(The rules are different for employers with 50 or more workers, under FMLA.)

There is no Texas law that requires an employer to provide paid maternity leave for workers. In fact, there is no Texas or federal law that requires an employer with only 20 workers to provide even unpaid maternity leave for workers. So the answer to your question on what you are legally responsible for during this time is nada. Zip. Nothing, in Texas.

Most pregnant workers are able to continue their normal duties until delivery, or a few weeks before delivery. At that point in late pregnancy, when the doctor says the employee cannot work any more, she officially has a short term disability, which is not covered under ADA. You are required to treat her as you would any other employee with a medical disability such as a heart attack or major surgery. Normally, the period of medical disability lasts 6 weeks after delivery, although it may be longer due to complications.

When this employee misses more than a few days due to childbirth disability or pregnancy disability, you could legally terminate her for excessive absenteeism. We are not suggesting that you do so, but it would be legal in Texas for a company with 20 employees.

Under the federal PDA or Pregnancy Discrimination Act, you must treat childbirth disabilty or pregnancy disability the same way you treat any other medical condition. If you would permit an employee with a heart attack or stroke to take 3 weeks off work, paid or unpaid, then you have to extend that same benefit to the pregnant employee. However, if you would terminate an employee who missed more than one week due to a heart attack, you can treat an employee on childbirth disability the same way.

Once the employee is released by her doctor to return to work, she is not entitled to any additional paid or unpaid leave under Texas law. This is generally 6 weeks after a normal delivery. Some employers do permit the employee additional unpaid leave to bond with her new baby. However, be aware that if you provide this baby bonding leave for female employees, you must also provide it for male employees who are new parents.

Many small employers give workers 6 to 12 weeks total of unpaid leave for pregnancy and childbirth, but there is no law that you are required to do so. Nor is there any law that you must return this employee to her job afterwards.

If you provide unpaid leave, you can legally require that the employee pay 100% of her group health insurance premium during this time. If you terminate the employee, she will probably qualify for continued health insurance coverage under COBRA or the Texas Mini COBRA. However, again, she will have to pay 100% of the premium.

Be aware that you are setting a precedent and any benefits that you grant this employee may need to be extended to other pregnant employees in the future.

This is a complex topic, so feel free to post any additional questions.