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Managing Your Maternity Leave

A United Nations survey found that out of 152 countries, the United States, Australia, New Zealand, Lesotho, Switzerland, and Papua New Guinea were the only ones one that did not have a national policy requiring paid maternity leave. The majority of countries surveyed provide benefits through social welfare systems, some require the employer to pay, and still others combine both financing sources.

Out of the millions of working women in this country, only one-third of those are working for businesses that have a maternity leave policy and 50 percent have to take their leave without pay, or use a mixed bag of time off from vacation, short-term disability, parental leave, or sick leave.

While it's important for you to be aware of the implications if you're fortunate enough to work for a company with a maternity leave policy, you should also understand your legal rights under state and federal laws in this area. Federal regulations do not guarantee your right to a maternity leave under certain qualifications, and state regulations are not consistent throughout the United States. What is guaranteed is your right to a disability leave if your company has disability leave for other medical situations.

Understanding the Leave Laws and Policies
In order to make sure that you are being treated fairly and getting all the leave benefits to which you are entitled, it is critical that you understand the following laws and policies:

The Civil Rights Act of 1964
Under the Civil Rights Act, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile or offensive work environment.

The Pregnancy Discrimination Act of 1978
This amendment to the Civil Rights Act of 1964 was the first piece of federal legislation that stated clearly you cannot be fired for being pregnant.

The National Family and Medical Leave Act of 1993
Basic Provisions

Fortunately, with the passage of the National Family and Medical Leave Act (FMLA) of 1993, benefits and protection for working families got better.

  1. Applies to companies with fifty or more employees.
  2. Allows up to twelve weeks of unpaid leave each year to care for a newborn or adopted child; or a sick child, spouse, or parent; and for personal illness.
  3. Employees must be given their original position or comparable job upon return.
  4. Employers must continue to provide health benefits for employees on leave.
  5. Applies to workers who have been employed full-time for one year or to part-time employees who have worked at least 1,250 hours in the previous twelve months.
  6. Teachers may be asked to remain on leave until the next school term under certain conditions related to the school calendar.
Business Provisions
  1. Exempts companies with fewer than fifty workers.
  2. Lets companies deny the benefit to salaried employees within the highest-paid 10 percent of their workforce, if letting the workers take the leave would create substantial and grievous injury to the business operations.
  3. Permits employers to obtain up to three medical opinions and certifications on the need for the leave.
  4. If workers do not come back, employers can recapture the healthcare premiums they paid during the leave.
How the FMLA Works
The FMLA doesn't require the leave to be taken by the week or even by the day. If you have an illness that requires treatment several times a week, you could conceivably take your FMLA leave in hour-long blocks. Even though that could drive your employer crazy, if the situation demands it, they are obligated to approve. It's smart to work out a schedule, when possible, that reduces the impact on your employer.

Alert your physician to the situation and ask for help in minimizing the medically necessary leave. Your company's personnel department may be an ally. By giving that office permission to contact your doctor, the official HR spokesperson can have more success than you in getting medical appointments at convenient times.

The law also says that unless the situation is an emergency, you have to give your employer at least thirty days notice that you intend to use FMLA benefits. To minimize resentment created by understaffing, do what you can to make your absence no big deal.

FYI: Both employers and employees say the FMLA is making things better!
Many larger firms actually reported cost savings related to FMLA, mostly from reduced employee turnover and training, and increased productivity and morale. A simple, user-friendly edition of the FMLA can be found on the website of the National Partnership for Women and Families at www.nationalpartnership.org. To inquire by phone, call (800) 669-4000.

State Laws for Maternity Leave
In 1987, the U.S. Supreme Court ruled that every state has the right to enact antidiscrimination laws to protect pregnant employees. About half the states have enacted laws since then requiring all but the smallest companies to give unpaid leave to pregnant workers. The standard paid maternity/disability leave, which must be certified by a physician, is six to eight weeks plus any accrued vacation time, with the average leave being three months. Sometimes, it's extended for a Caesarean birth.

In many cases, firms must promise the same job, or a comparable one, after the leave has ended. According to federal law, any greater right allowed by state law prevails. Contact your state labor board or employment office for more information.

If your employer doesn't have a disability plan—often the case with a small business—you may have to accept an unpaid leave. In that case, check with your local employment office to find out if you're qualified for unemployment benefits or temporary state disability benefits. Also, a few very progressive companies offer parental leave, which is usually in addition to maternity/disability leave and is available to both men and women.

Paternity Leave
Even though the FMLA provides new parents—including fathers and adoptive parents—with twelve weeks of unpaid leave to care for a newborn or adopted child, the myth is still around that men who take paternity leave are not serious about their jobs. Also, companies usually don't encourage new fathers to take time off for bonding with a new child.

While 50 percent of all fathers questioned in a national survey said they would spend more time with their children if their jobs permitted, they're more likely to take vacation time or use sick days when their babies are born. That's because they are afraid their managers or coworkers will disapprove. Only 15 percent of men eligible under FMLA make a formal request for paternity leave.

Given a choice between paternity leave or more flexible work arrangements such as telecommuting, most fathers voted for the latter. That's why an increasing number of companies offer benefits such as flexible work arrangements, parenting education classes, and on-site child care.

What to Do When You Suspect Bias Based on Your Pregnancy
Discrimination can occur in many different forms. Under the aforementioned laws, the following subtle and not-so-subtle types of pregnancy and sex discrimination are also prohibited:

Hiring Practices

Job Duties
Fringe Benefits
If you feel you are treated badly on the job because you are pregnant, there are several steps you can take to remedy the situation:

If it is decided that you are indeed being discriminated against, you would be entitled to a remedy that would place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, and other remuneration. Some state and local laws do allow damages to compensate you for future pecuniary losses, mental anguish, and inconvenience. Punitive damages may be available, as well, if your employer acted with malice or reckless indifference. You may also be entitled to attorney's fees.

Planning Your Maternity Leave
Before you begin negotiating your maternity leave, you need to do the following important things first:

Find out specifically what paid and unpaid leave you are eligible for. You might have some leave without pay that still includes benefits (usually a combination of your company's maternity leave policy, a short-term disability program, and accrued time off). Add up your accumulated vacation, sick, and personal days, and determine just how much unpaid leave your finances will allow. (Keep in mind when budgeting that your employer can legally require you to use up your paid leave first, and that some states require you to cover at least a portion of your leave before disability kicks in.) Again, check with your state labor office to learn about disability options. This is particularly important if you are working in a smaller company.

Negotiating the Maternity Leave You Want
How much leave your employer will allow and how much you want will most likely differ. Many companies are now using a sliding scale for maternity leave, based on seniority and length of time an employee has been with the company. Although, realistically speaking, it will be difficult to know for certain until your baby is born, you must do your best now to choose the right maternity leave for you.

Successful bargainers know that negotiation is a compromise. There must be something each party wants in the final agreement. The hour and setting of the meeting are significant factors, as are your employer's personality and management style. Be sure to listen carefully to everything that's said, especially the objections, and watch body language. Always remain professional; emotions don't belong in a negotiating sessions. No matter what the results are, always thank your supervisor for his or her time. Follow these steps to insure a successful negotiating session:

Remember, your significant other is also entitled to take a twelve-week FMLA leave with the arrival of your child. Unless you work for the same employer, you can each take up to twelve weeks at the same time, you can overlap a portion of your leaves, or you can take them consecutively, as long as each leave occurs within a year of your child's birth. (Your partner, of course, will not be entitled to any medical disability pay.) You may be able to arrange for your partner to care for your baby during your initial weeks back at work, which would no doubt make the transition a much easier one for you.

What to Do If Your Employer Does Not Have a Maternity Leave Policy
If your research has uncovered the absence of any maternity leave policy in your company, you may have to argue first for a policy before you consider negotiating for a leave. Begin by checking out what comparable organizations do for their employees so you can assess the likelihood of getting what you want and frame arguments in support of your position.

Next, try to gather support by asking what others think. Try to gauge the level of demand for the policy you have in mind. Approach the right person. Speak with a supervisor .If you're part of a collective bargaining agreement, talk to your union representative.

Don't give up when the answer is no. It may take a long time to plant the seed about a family-friendly policy, but eventually a groundswell of support for the idea will grow, and responsive management may then be more willing to consider your concerns. When arguing your case, the following benefits to the company should be covered:

  1. Morale—So many women have flooded into the marketplace (and even more are now attending college) that no firm can expect a women-free work environment now or in the future. When female employees know that a leave policy exists, their morale and productivity is higher.
  2. Recruitment—A liberal policy would be a strong incentive for any person considering a job in the firm.
  3. Turnover—No company can afford a high rate of turnover. The absence of a policy encourages young women to leave.
  4. Competition—Many firms have these policies nowadays. If two companies are competing, the one without a policy is in a weakened position.
If your employer does not want to give you a lot of time, consider asking your employer to pay for your medical insurance coverage while on leave, or at least, to share the cost of keeping you on the company plan.

It takes time to initiate new company policies. You may not sell the idea the first time around, but if your argument is followed by others, in time your employer will have to reconsider. Feel proud of the fact that future working women will benefit from your efforts to make your job a better place to be.

Be aware that if your employer does not treat pregnancy as a disability, its policies probably do not conform to the Pregnancy Discrimination Act and applicable state law. In that case, you should consider contacting the federal Equal Opportunity Commission (or state's equivalent) or an attorney to explain what your rights are.

FYI: Does Maternity Leave Cost More?
A study by the Families and Work Institute, a nonprofit research group, finds that maternity leave costs a company less than it would cost to train a replacement. Other studies have shown that businesses that provide maternity leave profit in other ways: women are more loyal, more productive, miss fewer days at work, and work longer into their pregnancies. They are also more likely to return to the job after childbirth.

Work Options to Consider When Your Maternity Leave Ends
Now is the time to think about your working arrangements after you return from leave and to discuss the possibilities with your employer. Many alternatives are possible, although your particular job may not be adaptable to some of them. For example:

Keep in mind that these elements can be combined: Flextime schedules can be full-time or part-time; part-time workers might also telecommute, and one job-share partner might work a compressed schedule to make physical room for the other partner. You can also propose a short-term, part-time schedule that only lasts two months. For more ideas, see When Your Job and Motherhood Don't Mix.

© 2005 by Marla Schram Schwartz. Excerpted from The Working Woman's Baby Planner with permission of its publisher, Sourcebooks, Inc.

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