Expecting Benefits - New Mothers and Fathers Have Rights at Work

August 23, 2004

Pregnancy rothschild
Paul H. Rothschild, Esquire, says maternity benefits protect not only a woman's job security, but also her status, benefits, and length of service with a company.

Unlike many years ago, today's working women, and their partners, have legal safeguards that protect their job security after giving birth. But the intricacies of the laws, and to whom they apply, are not always obvious.

Few experiences in a woman's life, if any, are as life-changing as giving birth to a child. Decades ago, however, women didn't have the dual pressures of preparing for a changed home life and juggling work responsibilities. It's a different world now, however, and lawmakers over the years have aggressively worked to protect expectant mothers' job security.

That's where laws such as the Mass. Maternity Leave Act and the more recent federal Family and Medical Leave Act (FMLA) come in. But while they were established to protect a woman's work status and benefits in the weeks following delivery of a child, their nuances, and the ways in which they co-exist, can be confusing.

"There's a state law and a federal law, and they're not exactly the same," said Paul Rothschild, an attorney with Bacon & Wilson, P.C. in Springfield. "They overlap, and employees and entitled under them to differing benefits, and sometimes concurrent benefits."

This month, BusinessWest takes a look at these maternity benefits and the ways in which they apply to workers in Massachusetts.

State Rules

The Commonwealth's Maternity Leave Act predates by many years the federal FMLA enacted into law during the 1990s. According to the state mandate, companies with six or more employees are required to provide eight weeks of maternity leave after the birth of a child to any worker who has completed her probationary period or worked at the company full-time for at least three months.

The law also applies to adoption of a child under age 18, or under 23 if the child has a mental or physical disability.

Employers are not required to pay mothers on leave, although many do just that, for part of the eight-week period or all of it. However, the law states that women must return to enjoy the same benefits and status as when she left.

"There are all kinds of issues involving return-to-work rights," Rothschild said. "Under the Massachusetts law, she must be restored to the previous or similar position upon return to employment. She must have the same status, pay, length of service credit, and seniority, and be eligible for the same benefits and programs she was before she left."

The state does not require employees to use vacation time or sick leave during maternity leave. And while the time away from work does not affect an employee's credited service time, neither does it add to it. "In other words, it's considered a blank space in that service time," he said.

For the employee's part, she is expected to give an employer two weeks notice of the anticipated date of departure and expected date of return, Rothschild explained, with the understanding that those dates can obviously shift unexpectedly.

For all the issues the Massachusetts law clarifies, a few intriguing ones remain vague. For instance, the Mass. Commission Against Discrimination has issued several maternity-related guidelines over the years, stating, for example, that there should be no time minimums between leaves for birth and adoption, and that twins should be considered two different births totaling 16 weeks of leave benefits; however, the rulings don't have the force of law without a formal challenge to the leave act.

Federal Rules

The federal FMLA expands state laws in many cases, especially as it applies to men. Massachusetts offers no paternity leave, but the federal law allows for 12 weeks per year for a new father to be away from work as well as a new mother. In fact, the act goes well beyond maternity itself.

"The FMLA us much broader," Rothschild said. "You can take leave for a birth, for adoption or foster care, or to care for a spouse, son, daughter, or parent if they have a serious health condition."

Furthermore, the 12 weeks do not have to be taken all at once, and can be split between different family situations throughout a given year. And as it's gender-neutral, the father can take the same benefits as the mother.

Gay and lesbian relationships pose some questions that have yet to be fully answered by the law, however. The federal government does not recognize same-sex marriage and does not offer maternity benefits to the female partner of a woman who has given birth, leaving states that recognize civil unions, or plan to do so for gay marriage, will approach the issue under their own laws.

Just as the federal maternity benefits are broader than the Bay State's own mandates, the restrictions on who applies for them are tighter. For examples, only companies with 50 or more employees within a 75-mile radius of the home office are required to obey the FMLA, and then only with regard to employees who have worked at least 12 months.

The FMLA benefits run concurrent to state laws, Massachusetts residents get just 12 weeks leave, not 20, but also require that employees are returned to their level of status and benefits in the company. Furthermore, "if a company is paying, say, 50% of the employee's health benefits, it must continue to do that during the leave period."

However, under federal law, employees can be required to use their accrued sick or vacation time for leave, but only after the period of time that's covered by the state, or the first eight weeks in Massachusetts.

There are a few exceptions to the FMLA's eligibility rules. For example, if the employee is among the highest-paid 10% of wage earners at the company, and the employer can show that the worker's absence would cause substantial economic harm to the organization, the employer is not required to keep the job open for the employee.

Also, if a husband and wife work for the same company, they are entitled only to 12 combined weeks of parental leave, although state laws that recognize both maternity and paternity leave may be more generous.

The FMLA also states that the employer can require a physician's certification of the reason for leave, although, in the case of pregnancy, the condition is generally fairly obvious.

Above and Beyond

Of course, while these regulations provide the bare minimums for maternity benefits in Massachusetts, some employers provide additional ones - including, in many cases, full salary during the eight weeks of leave.

Western New England College (WNEC) has developed an innovative way to broaden its maternity benefits, by establishing a short-term disability plan for expectant mothers.

"If a medical complication associated with maternity arises, that's treated like any other form of disability," said Greg Michael, executive director of human resources and the career center at the college. "Once we get a note from the employee's doctor that she needs to cease working because of maternity, we can place her on a short-term disability program that pays 100% of her salary for up to six months."

"Most women will not need this, but it is income protection in case it's not a routine circumstance," he continued. "We'll have some employees work up to the day they deliver and return the week after, but not every situation is like that."

WNEC has also set up a partial disability program for women who need to reduce their worktime before delivery or cannot return to full-time duty after that time, due to complications. "They're paid for the amount of time they're able to work, and receive the disability benefit for the amount of time they're away from the workplace," Michael said. "It's very flexible in that regard."

Two years ago, WNEC won the Work-Life Balance Award from Springfield Day Nursery and BusinessWest for maintaining a culture supportive of families, and Michael said such policies make good business sense, a perspective companies are increasingly adopting, albeit gradually.

"I think one of the things we do well is to provide resources post-delivery," he said, citing as one example provisions on campus for nursing mothers. "The whole idea is to support and assist the mother as she returns to work."

That's obviously the gist of the state and federal laws in place to ensure that mothers have the job security the post-pregnancy period demands. Navigating the intricacies of those laws, however, is often not such an obvious exercise.

"Employers can sometimes get caught in the middle," Rothschild said. "Even when they've tried the best they can to work with employees, there can still be problems."

Nevertheless, making a priority of accommodating those expectant mothers, and their partners, is a proven path to smoothing out the life-changing transitions that a new baby brings.

by: Joseph Bednar

BusinessWest
August 2004