Going to Be a Mommy? Know Your Rights

by Mark Britton on 6 September 2010 8 comments

Ah, the work/life balance. For many women, this should be called the "work/mommy" balance, because after working all day and being a mommy all night, there is little else to balance. Moreover, most women find the work/mommy "balance" to be more like being drawn and quartered — painfully being pulled in opposing directions by the overwhelming demands of each role — always feeling they are failing at one or the other, if not both. Now, I don't want to paint too bleak of a picture. Parenthood is a beautiful, magical thing — but it is truly challenging for the working mom.

For some women, these challenges begin when they announce to their employer that they are pregnant. Although everyone is congratulatory and offers hugs all around, male and female managers alike will often wonder whether you securing the leading role as "mommy" will affect your performance as understudy "worker bee" on their main stage. This is a legitimate concern considering that you don't even know how this new role in an evening drama will affect you personally or professionally.

The good news is that the best of employers will make every accommodation to ensure that you are able to have a stress-free birth and recovery. Notice that I did not include "pregnancy" because, until you have your baby, most employers will not alter their expectations regarding your work. Many women work up until the day, if not the hour, of their pregnancy and barely have time to punch the time clock on their way to the hospital.

What if you have an employer that is not committed to accommodating your choice to bear children? What about an employer who assumes that you will be shortly exiting stage left and would rather give you the Sheppard's Hook long before you offer your tearful but voluntary final bow?

The good news is you have rights should you encounter a less than sympathetic employer regarding your pregnancy. The bad news is that you live in the United States. Yes, that's right: The U.S. disappoints when it comes to parental leave. The U.S., along with Lesotho, Liberia, Swaziland, and Papua New Guinea (I'm not making this up) are the only countries that don't guarantee paid parental leave.

Being one to focus on the good news rather than the bad, let's have a look at the rights you do have under both federal and state law in the U.S.:

Pregnancy Discrimination Act

As its name implies, the Pregnancy Discrimination Act (whose regretful acronym is "PDA") is a federal law that prohibits your employer from discriminating against you from the moment you announce you are "with child." These rights extend through childbirth and any disability resulting there from. These rights prohibit the following:

  • Firing you because you are pregnant or suffering from a pregnancy-related illness or disability.
     
  • Forcing you to go on parental leave. You can work as long as you are able to while pregnant, although you may not see this as a benefit.
     
  • Treating you differently from anyone else with a medical-related disability. So, if your organization has policies regarding medically-related disabilities, your employer must afford you the same modified work tasks or disability leave they offer to other disabled employees.
     
  • Terminating you while on parental leave. You must also continue to accrue the same seniority and vacation benefits.

Keep in mind that the PDA is not bullet-proof. It only applies to companies with 15 or more employees. Also, many of the rights around benefits and security only apply if your employer offers the same benefits and security to other employees. In other words, the PDA only requires that your employer treat the pregnant you equally, not specially, vis-à-vis your co-workers.

Family and Medical Leave Act

The Family and Medical Leave Act, or FLMA, is another, newer federal law that allows a new mother — whether through childbirth or adoption — or her partner to take up to 12 weeks of unpaid leave in the 12 months following the birth date of their child. You can take this leave all at once or, easier on paper than in practice, in installments following the birth of your baby. Similar to the PDA, the FLMA requires your employer to reinstate you at the same or equivalent job when you return.

Unfortunately, there are even more bullet holes in the FMLA than the PDA. It only applies to companies with 50 or more employees and, typically, you need to have worked for a full year or 1250 hours before your company's FMLA obligations kick in. So, don't plan on getting hired at IBM, having a baby the next month and leading a life of 12-week luxury, albeit unpaid, while Big Blue patiently waits.

The good news is that many employers who have less than 50 employees will have employment policies that mirror or even expand the benefits mandated for larger companies under the FMLA. And once those policies are in place, you are entitled to them under the PDA and potentially other state laws.

State Pregnancy Protection Laws

The state that you live in may have its own laws offering you additional rights regarding your pregnancy and parental leave. The most common and valuable of these additional rights is Short-Term Disability coverage (another regretful acronym of "STD"). STD is designed to cover your wages (or at least a portion of them) due to some form of disability including disability resulting from pregnancy and/or childbirth.

Most states cap the amount of STD benefits, with six weeks typically being the amount of time you are covered for pregnancy. Some states go as high as 12 weeks or extend the time due to complications with your pregnancy (e.g., bed rest) or birth (e.g., a C-section). Your state will usually cover 50% to 66% of your income and you will probably be required to pay an amount from each paycheck to cover your salary (or a portion of it) during the time that you are disabled.

Your company's human resources department can educate you on your state's STD coverage and any other rights available in your state. He or she can also help you maximize your leave using a combination of parental, personal, vacation and/or disability leave.

In a nutshell, these are your various rights once you are pregnant. The key is to do your research early in your pregnancy regarding the particular facts of your employment situation. With your legal house in order, you will feel that much more comfortable when the house lights go down. You will be that much more prepared to hit the "mommy" stage with grace and aplomb.

This is a guest post by Mark Britton, Founder and CEO of Avvo. Avvo rates and profiles 90% of the lawyers in the United States and has the industry's largest Q&A forum where you can ask these lawyers legal questions regarding your employment situation — anonymously and free. For more resources from Avvo:

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Guest's picture
RKyle

The FMLA has another "loophole" worth mentioning: Yes, the company must have more than 50 employees, but they also must be within a 75-mile radius. So companies with more than 50 employees but 45 in one office and 10 in a satellite office 300 miles away are not required to abide the FMLA. I learned this the hard way.

I would advise all professional women who are planning on having a child to move to another country.

Guest's picture
Clee0119

These acts are good while a person is pregnant, but apparently they don't cover in the case of a stillbirth and the emotional as well as the residual physical effects that come from such an event. My wife's company let her go while having pending FMLA for one of such physical concerns following the lose of our child.

Guest's picture

Great post, Mark. Understanding these policies is crucial when you’re expecting a child. Wanted to add one more that makes life after maternity leave a bit easier for the breastfeeding mom who will need to pump breastmilk at work. Breast pumping makes it possible to leave behind for her baby while they are apart, and lets her maintain her supply so she can breastfeed for the duration.

A new break time requirement for nursing mothers was included in the Patient Protection and Affordable Care Act that amends Section 7 of the FLSA. The U.S. Department of Labor's Wage and Hour Division posted a helpful fact sheet for employers explaining what they need to provide. You can find it here: http://www.dol.gov/whd/regs/compliance/whdfs73.htm. Here’s the nitty gritty of what the document says (applicable to companies with over 50 employees):

1) Employers must provide reasonable break time to express breastmilk (that means pump).

2) Employers must provide a private place to pump, other than a bathroom, that’s available whenever moms need it for up to a year after the birth of their child.

The return to work is one of the greatest hurdles that breastfeeding moms face, but it doesn’t have to mean an end to breastfeeding. Before the recent passage of these workplace accommodations, breastfeeding moms were left largely on their own to figure out how to adhere to recommendations by major medical organizations like the AAP to breastfeed for at least a year, including breastfeeding exclusively (i.e. nothing else but mom’s milk) for the first six months after birth.

Moms: Be sure to share this information with your employer so you get all the support you need to reach your breastfeeding goals.

Gina Ciagne, CLC
Director, Breastfeeding and Consumer Relations
Lansinoh Laboratories
http://www.lansinoh.com
http://www.bymomsformoms.net

Guest's picture

For those pregnant women who need more information on their rights under the PDA, FMLA or state discrimination laws, feel free to check out our employee rights blog at www.takethisjobnshoveitblog.com.

Guest's picture
Guest

I cannot believe that citizens in the USA only get 12 weeks "mat leave" it seems so sad. Here is Canada we get 1 year, and the father is also able to take time off - I believe it's 16 weeks.

Guest's picture
Guest

There are innumerable resources for working women who want to have children, and sadly few for those who don't.

Try being a woman who doesn't want children in a heavily "family friendly" workplace (which most are), or ESPECIALLY when your supervisors are devoutly Catholic, or themselves parents of children. You're treated like a social pariah, and can count on being saddled with extra work and longer hours to pick up the slack for those employees who "have families".

Sorry... no sympathy here for the working Mom. It's the working woman without kids who is going to have to bear your burden, and get none of the thanks.

Guest's picture
Guest

Absolutely disagree with you my dear. I've been on both ends of the spectrum. Now that I'm a mom, I can tell you that I should NOT have to apologize for "daring" to want to start a family. It frankly isn't our "fault" that nature has us bearing the child. My point is, that you cannot compare working extra hours as a childless woman, than one who not only is expected to perform well, put in many hours, work hard, etc, and add to that raising children and for many of us also running a home/ family/ spouse, etc. YOU do not have to bear any of my burden, as it is ME who is dealing with it! I guess until you become a parent, you will remain CLUELESS in this regard!

Guest's picture
Guest

Oh, you're SO right -- I go home to my empty, joyless, lonely life, where all my bills are paid by some anonymous benefactor and the only thing I have to worry about is keeping up with "real" women with "real" jobs an "real" lives and "real" responsibilities -- like being a Mom!

Get over yourselves. I get up at the crack of dawn, work my ass off all day (while the phones are ringing with, "Billy has a runny nose, I can't possibly come in!") and come home to freelance work, volunteer work, clean the house, pay the bills, prepare dinner for my husband, *AND* help our extended family whenever and wherever we can.

Just because you can't fathom a life outside of your children, or at least not one of any modicum of value, doesn't mean that the rest of us aren't just as saddled with real life -- you don't have a market on being a responsible adult just because you've popped out a kid, nor are you any more entitled to have someone else pick the slack (because it's always the parents who are bowing out of work responsibilities).