Human Resource Blog

Maternity Leave Policy at small company

I work for a small company (16 people) in Massachusetts where FMLA does not apply. Our employee manual contains a maternity leave policy that provides for 8 weeks paid time off and 4 weeks unpaid time off. We recently had a woman out on maternity leave and she was given a total of 16 weeks off due to her own special circumstances. In the future, can all employees expect to be allowed 16 weeks off (as was the case recently)? Or can this be determined on a case by case basis? Thank you.

It is generous of your company to provide paid maternity leave. Yes, you have set a precedent by allowing this employee to take 16 weeks of leave.  To be honest, it would have been better if you did not make a special exception for this employee, or if you had terminated her and rehired her when she returned to work. By granting this leave you have changed company policy and opened the door to discrimination suits.

If you deny 16 weeks of leave to the next pregnant employee, that will be illegal discrimination based on religion, race, color, national ancestry, etc. (For example, if the first employee was Catholic and the second employee is not, that is illegal discrimination based on religion.) Keep in mind that policies that create different benefits or working conditions for people in different groups are illegal discrimination, even if it was not your intention to discriminate.

To fix this situation, you need to establish or clarify a new policy, preferably in writing. The new policy may be the same as the old policy, or it could be different: *Employees are entitled to time off for pregnancy disability and childbirth disability, plus an additional 4 weeks of unpaid time off.* Or *Employees are entitled to 8 weeks of paid time off and 4 weeks of unpaid time off. An additional 4 weeks of unpaid time off may be granted by management if staffing needs permit.*

Simply saying that leave will be determined on a case by case basis is certain to create favoritism and resentment. It also invites a discrimination lawsuit when one person is granted leave and another is denied it. Some companies do this, and get away with it for a long time before a lawsuit is filed, so this is a judgment call.

Under federal law, you must grant the same benefits to an employee on pregnancy disability or childbirth disability, as you grant for an employee on medical leave for any other reason. If you permit an employee to take 12 weeks of unpaid leave for a heart attack, you must permit a pregnant employee on doctor-ordered bed rest to also take 12 weeks of unpaid leave.

Of course, the federal FMLA will apply once you have 50 or more employees within 75 miles.

Be sure you are familiar with the MMLA, although it sounds like your policy is more generous than what is required under that law: http://www.mass.gov/mcad/maternity1.html