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Maternity Leave

I am the Director of a small daycare, less than 30 employees. In the past I have provided maternity leave for my teachers. If they have any accumulated sick, personal, or vacation time they can use that while they are off. Question is: do I have to have a position open when she returns from leave? I have a teacher that is planning on being out four months and I can’t “hold” a position that long. Also, what do I have to give her regarding breastfeeding time while on the clock?

There are two federal laws to consider for maternity leave, the Family & Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA).

The FMLA entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including childbirth and baby bonding, within a 12-month period.

With only 30 employees, you’re not covered by the FMLA. Still, it’s worth knowing that if an employee is on FMLA leave, upon return from leave the employee must be restored to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.

The PDA prohibits sex discrimination on the basis of pregnancy. Under the PDA, an employer that allows temporarily disabled employees to take leave must allow an employee who is temporarily disabled due to pregnancy to do the same. Further, employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave.

Employers with at least 15 employees are covered under the PDA.

So, if you usually allow an employee with a temporary disability to take leave and return to his/her same position then the same benefit must be awarded to the employee on maternity leave.

Generally, when an employer allows an employee to take leave, maternity or otherwise, there is an assumption that the employee, upon return from leave, will return to his/her original job or at least a comparable one.

Let’s say your policy/past practice entitles employees up to 3 months of leave. The employee in question is requesting 4 months. In this case, approving the leave and whether the employee will be returned to her prior position is ultimately up to you. You could tell the employee that per policy/past practice she is entitled to 3 months of leave and upon return from leave she can return to her original position. Then, make it clear that any time beyond 3 months is not approved and you cannot guarantee her job.

It’s important to put all leave agreements in writing so both parties are clear on the terms of the leave and job reinstatement.

In regards to breaks for breastfeeding, federal law requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The law is clear that the frequency and duration of breaks is based on the mother’s need to express milk.

Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the federal Fair Labor Standards Act’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies.

The law provides an exemption for employers with fewer than 50 employees if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. It’s best to make a reasonable effort to accommodate the employee.

Lastly, it’s important to be aware of similar state leave, discrimination, and break times for nursing mothers laws that may provide more protections for employees.


This entry was posted on Thursday, February 16th, 2017 at 7:37 pm and is filed under
Benefits, Labor Laws.
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