Saranna Thornton, Ph.D. Hampden-Sydney College

Maternity leave makes balancing work and family responsibilities a little easier, but many women and their employers are misinformed about the laws governing maternity leave. Consequently, women forego benefits to which they are entitled. This article explains two key federal statutes (2) governing maternity leave benefits and provides suggestions for negotiating leave with your employer.(3)

The Pregnancy Discrimination Act (1978)
The Pregnancy Discrimination Act (PDA) amends Title VII of the Civil Rights Act of 1964. Enforced by the Equal Employment Opportunity Commission (EEOC), and upheld by the Supreme Court(4) in 1987, the PDA prohibits discrimination against women on the basis of pregnancy, childbirth, or related medical complications. The law applies to employers with 15 or more employees and addresses hiring, firing, and maternity leave.

The PDA defines maternity leave as a medical disability leave (granted to women only) covering the period during which a woman is physically unable to work as a result of childbirth or related medical complications (e.g. incompetent cervix, pregnancy-induced hypertension, etc.). Under the law, pregnancy alone, isn't considered disabling. The PDA mandates that covered employers must provide paid maternity leave -- if and to the extent that they provide paid disability leave to similar employees for other non-work related medical conditions requiring a short-term (less than 6 months) absence. Employers who don't provide paid disability leave need not provide paid maternity leave. However, employers who provide fully paid medical disability leave for workers who are injured in an automobile accident, break a leg skiing, etc., must provide fully paid maternity leave. The medically recommended period of recovery for a normal vaginal delivery is 6 weeks while for a cesarean delivery it is 8 weeks.

Paid maternity leave must be granted by employers with either formal or informal paid disability leave policies. Some employers don't have formal short-term disability policies, but they have previously paid employees who were temporarily disabled. The existence of an informal paid leave policy obligates the employer to provide paid maternity leave. Note, however, that employers can grant different benefits to different categories of employees. The existence of paid disability leave for clerical staff doesn't guarantee paid maternity leave for professional staff.

According to the EEOC, an employer may not require a pregnant woman to obtain her doctor's permission to continue working. If you choose to work throughout your pregnancy and can still perform your job, your employer can't stop you or assign you other duties against your preferences. On the other hand, when a woman begins maternity leave, her employer must hold her job open for her for as long as it holds open the jobs of other employees (in the same job category) on disability leave. If a woman wants to resume working before her maternity leave expires, and she can perform her duties, her employer must allow it.

Employers may grant maternity leave without providing paternity leave. Because maternity leave is a medical disability leave, and men don't suffer from pregnancy-related medical disabilities, employers may grant maternity leave only.

The EEOC has ruled that employers cannot fire or refuse to hire a woman because she is pregnant as long as she is able to perform the major functions of her job during the pregnancy. An employer also cannot fire or refuse to hire a pregnant woman because of its prejudices against pregnant women, or the prejudices of co-workers, clients, customers, or students. If a pregnant woman becomes unable to perform her primary job duties (e.g., during childbirth, etc.), her employer may fire her only if it also fires other employees who become medically disabled and temporarily unable to perform their primary job functions.

With an increased emphasis on "family values" some employers have illegally sought to restrict maternity benefits to married workers. It is also illegal to require women to use accumulated sick leave before taking paid maternity leave -- unless the same demand is made of other temporarily disabled workers. Similarly, a university can't require women faculty to substitute sabbatical leave for maternity leave -- unless faculty members with other medical disabilities are required to use their sabbatical leaves to recover from those conditions.

The Family and Medical Leave Act (1993),
Enforced by the U.S. Department of Labor, the Family and Medical Leave Act (FMLA) affects employers with 50 or more employees who work at least 20 weeks per calendar year. All federal, state and local government agencies, secondary and elementary schools are also covered by the FMLA. To qualify for leave an employee must have been employed for at least 12 months (which need not be consecutive) and must have worked 1250 hours in the year prior to the leave.

Among its various provisions, the FMLA mandates up to 12 weeks of job-protected, unpaid leave during any 12 month period for the birth or adoption of a child, for medical complications experienced by the mother, or to care for a newborn with a serious health condition. When the need for leave is foreseeable, as it is for childbirth, you must provide at least 30 days notice. When the need for leave is unforeseeable, as for medical complications, notice must be given as soon as practical.

The FMLA provides equal leave to both new mothers and fathers and also permits new parents to take the 12 weeks of leave on an intermittent basis. For example, a new parent employed in government or industry might take 8 weeks of unpaid leave following childbirth and then return to work part time until the remaining 4 weeks of leave expire. New, faculty parents might, for example, use the FMLA to negotiate course reductions -- without pay. Intermittent leave, however, requires the employer's approval.

When medical complications are the reason for leave, the employer may require certification of the health condition from a medical professional. When an employee returns from Family and Medical Leave, he/she must be restored to the same job or a job with equivalent pay, benefits and responsibilities. Benefits received prior to the commencement of leave (e.g., health insurance) must be continued by the employer throughout the leave. But, you are not entitled to accrue additional benefits while on leave. Employees applying for Family Leave may be required to first use accrued vacation, sick, and/or personal leave. This provision is more likely to affect women economists employed by government agencies or private sector firms rather than college or university faculty who often don't accrue vacation or sick leave.

The FMLA grants leave in more circumstances than the Pregnancy Discrimination Act. The FMLA typically grants longer leaves and makes leave available to new fathers. A downside is that leave taken under the FMLA is unpaid. Thus, family leave is less likely to be fully used by younger employees who typically have smaller savings and who often rely on the income of the covered family member.

Negotiating for Maternity Leave
If you are like many women, you may not concern yourself with your employer's maternity leave policies until you begin trying to conceive, or until you become pregnant. College or university maternity leave policies are usually explained in the faculty or staff handbooks. Governments and private firms also typically put their policies in writing. To learn how much leave your employer offers, check the appropriate handbook or contact your Human Resource Office.

If you are a job applicant and you can't obtain a comprehensive list of benefits prior to your on-site interview, ask for one when salary and benefits are discussed. Later, examine it to determine if the policy meets your anticipated needs.

It is best to ask for a comprehensive list of benefits -- without mentioning maternity leave. Although employers cannot legally discriminate against you in hiring because you plan to have a baby, or because you are pregnant, some do. (Then, your primary means to enforce the law is to file a complaint with the EEOC and a civil law suit against the employer.) Because pregnancy discrimination cases are often hard to prove and expensive to fight, if you are a job applicant, it may be best to avoid talking about babies until after you have a written job offer.(5)

If the employer's maternity benefits don't meet your needs (or don't comply with the law), the best time to negotiate is often after you have accepted. This is usually the point in the job-search process that an employer is most willing to make accommodations. Unless you have highly demanded, specialized job skills, your negotiating position will decline somewhat after you sign an employment contract.

When negotiating, one of the most important preparations you can make is to know the law.(6) Anticipate points of contention and be prepared to parry arguments made against your requests for leave.(7) For example:
Employer: Why should we pay people who aren't working and who engaged in optional behavior (i.e., having babies)?
Response: Employers who provide maternity leave benefits often improve their bottom line. In 1990 a majority of employers with formal parental leave benefits reported to the U.S. Chamber of Commerce that the benefits aided in recruiting and retention.(8) Higher retention can offset the costs of leave. Employers and co- workers already subsidize optional employee behavior. Male and female co- workers engage in a variety of optional risky behaviors (e.g., smoking, poor diets, participation in risky sports, etc.) likely to cause costly absenteeism. A cigarette smoking colleague who is paid when absent due to smoking-related illness (e.g. emphysema, heart disease, etc.) is also engaged in subsidized, optional behavior.

Employer: Adopting a maternity leave policy will cause women employees to have more babies.
Response: Even paid leave doesn't substantially offset the enormous financial (and non-financial) costs of raising children. Susan Averett and Leslie Whittington found the presence of maternity leave benefits tended to increase first-births by just one per 1000 women aged 15-44 (9)

Employer: Adopting a maternity leave policy creates a disincentive to hire women.
Response: Employers already offer a variety of benefits (e.g., paying for moving expenses, finding a job for a spouse, paid course reductions, etc.) to desirable job candidates. Maternity leave is just another benefit to include in the mix. Moreover, refusing to hire women because they might get pregnant violates the law. Although lawsuits are hard for plaintiffs to win, employers may incur substantial legal costs, bad publicity and can be held liable for damages that far exceed the costs of maternity leave.

Employer: Why don't women faculty time their pregnancies to give birth early in the summer?
Response: Human physiology makes it impossible to exactly time a pregnancy.

Employer: Maternity leave is inconsistent with AAUP guidelines.
Response: In 1974, the AAUP adopted recommendations supporting maternity leave.

ENDNOTES:
1. This paper benefited from comments provided by Sarah Hardy, Lowell Frye and Jana DeJong. Errors are the sole responsibility of the author.
2. Federal statutes specify your minimum rights. Some states have adopted legistlation providing more generous benefits.
3. The information in this article should noat be used as a substitute for obtaining legal counsel.
4. Califormia Federal Savings and Loan vs. Guerra.
5. Prospectuive employers can't legally ask about your plans to have children - although some will. Responding to these questions may be difficult. Mentioning that the question is illegal probably won't endear you to the interviewer and may negatively affect your changes of getting a job offer. Alternatively, you could change the subject or state that you haven't considered the issue.
6. Useful resources include: (1)Pregnancy and Employment: The Complete Handbook on Discrimination, Maternity Leave, and Health and Safety, The Bureau of National Affairs, 1987. (2) Everything a Working Mother Needs to Know About Pregnancy Rights, Maternity Leave, and Making Her Career Work for Her, Anne C. Weisberg and Carol A. Buckler, Main Street Books, 1994. (3) "EEOC Sex Discrimination Guidelines," 29 Code of Federal Regulations 1606.10 and Appendix.
7. Some arguments against granting leavy many sound silly. Over the years, however, I have heard each one.
8. American Bar Association, "Lawyers and Balanced Lives: A Guide to Drafting and Implementing Workplace Policies for Lawyers", p. 6, Chicago: American Bar Association, 1990.
9. "Does Maternity Leave Induce Births?" Susan L. Averett (Department of Economics and Business, Lafayette College, Easton, PA 18042) and Leslie A. Whittington (Georgetown University) Presented at the 1997 ASSA meetings, New Orleans, LA.