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Maternity Leave 411 (from an Employment Lawyer)

By Carly Skarbnik Meredith

Congratulations! You’re preparing for the arrival of a new baby into your family and are getting ready for your upcoming parental leave. The last thing you need is to deal with confusing parental leave policies. However, in my experience, many individuals have questions concerning their parental leave entitlement. This post sets forth general information that will hopefully provide you with a basic understanding of job protection and monetary benefits surrounding your leave. As your specific circumstances may affect your ability to receive job protection and monetary benefits, you should always consult with your Human Resources department or an experienced employment lawyer concerning your parental leave or any medical leave.

First things first, find out if your company has a parental leave policy.

When planning to take leave, you should first consult with your Company’s Human Resources department to learn about your Company’s specific parental leave policy.  Many companies provide for a more generous parental leave than the law actually requires.  If your Company does not have a parental leave policy, your leave entitlement will be governed by both federal law and the law of the state in which you are in employed.

What does the law require?

The federal Family and Medical Leave Act, better known as the FMLA, provides for 12 weeks of job-protected leave should you and your employer meet certain specific conditions.  For instance, assuming you work in the private sector, you must have worked 1,250 hours for your Company over the past 12 months, and your Company must employ at least 50 individuals within 75 miles.  Please note: the FMLA does not mandate that an employee be paid during his or her job-protected leave.  Many people that I consult with confuse compensation with time off from work.  They are not the same.  

Depending on certain circumstances, and the applicable state laws, you may be entitled to job-protected leave in excess of the 12 weeks provided under the FMLA. For instance, employees who work in New Jersey for employers that qualify, may also be entitled to job-protected leave under the New Jersey Family Leave Act that could potentially extend their job-protected leave beyond the 12 weeks offered by the FMLA.

To fully understand your entitlement to job-protected leave, you should consult with Human Resources or an employment attorney. 

Will I be paid while I am out on my parental leave?

Your best chances for being paid (at least in full) while out on leave lie with your employer (see my first point!).  However, even if your employer does not provide for paid parental leave, you may still be entitled to benefits under certain state laws.  New York State now provides for Paid Family Leave for 10 weeks, which will increase to 12 weeks by 2021. Almost all private employers are required to participate in Paid Family Leave in New York State; public employers may opt in to provide the benefit.  If you work in New Jersey, then you are likely able to collect disability benefits during the length of your pregnancy-related disability (both pre- and post-birth).  Additionally, New Jersey offers Family Leave Insurance benefits for up to 6 weeks, which will increase to 12 weeks in July 2020.  Please note that in New Jersey benefits have a weekly maximum rate that may be much less than your actual salary.

In Conclusion…

I know that parental leave is very confusing for many people, and I am asked questions concerning parental leave all of the time.  The intent of this post is to provide general information concerning parental leave. Your specific entitlement to job-protected leave and/or monetary leave benefits will vary depending on your circumstances.  Additionally, the laws briefly mentioned in this article can be complex and confusing. Should you have any questions concerning parental leave, please contact your Human Resources department and/or an experienced employment attorney! 

Disclaimer: This post does not constitute legal advice and does not create an attorney-client relationship.

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Debra Lutsky