Mothers and fathers can take leave for a newborn.
Photo: © 2009 Jupiterimages Corporation
Before 1993, workers who became parents were subject to the policies and whims of their employers. Requests to stay home on leave with a newborn could be denied for any reason, and if a new parent wanted to take time off, he or she could be fired.

Then, in 1993, Congress passed the landmark Family Medical Leave Act (FMLA), which created the first guaranteed right of working mothers—and fathers—to stay home with their newborn child. FMLA guarantees 12 weeks of unpaid leave to both mothers and fathers after the birth of a child, adoption of a child or placement of a foster child.

Even though FMLA celebrated its 16th birthday this year, it is still a major source of confusion for expectant parents trying to figure out their rights, responsibilities and options.

According to Marcia McCormick, an associate professor at St. Louis University School of Law and an editor of the Workplace Prof Blog, one of the biggest misconceptions about FMLA is that it is paid leave—it isn't. FMLA only guarantees that your employer holds your position for you for 12 weeks. While some employers offer more generous parental leave plans that include paid time off, they are not legally required to. "If you do have some kind of paid leave—like if you have sick leave or vacation leave—you can opt to substitute some of that paid leave for the unpaid leave," she says. "Or, your employer might require you to use your paid leave as part of your FMLA time period."

Deb Keary, director of human resources at the Society for Human Resource Management, says another misconception about FMLA is that it guarantees you'll get your old job back when you return. "You have to be put back in a job that has the same conditions of employment—which means your salary, your benefits, your hours, if you had flex time, whatever, it all has to be the same. But it doesn't have to be the exact same thing you were doing before you left," she says. "If you're a copy editor and you work on certain publication, you might be assigned to a different publication when you come back."
And not all workers are eligible for FMLA protection. All state, local and federal employees—including school teachers—are protected. But people who work for companies that employ fewer than 50 workers are not. And those employees who have worked less than one year and clocked fewer than 1,250 hours are not eligible.

If both the mother and father of the child work for the same company (that has at least 50 employees), they only get 12 weeks of FMLA protection to split between them, rather than 12 weeks each. "The rationale is to minimize the burden on employers," McCormick says. "Per household, or per new family, they would only be supporting one leave period."

Another reason you might not be eligible for 12 weeks of parental leave under FMLA is if you were on leave earlier in the year because of a medical condition. "The 12 weeks is an annual allotment of hours for all of your healthcare leave," Keary says. "Just because you're pregnant doesn't mean you'll have 12 weeks. If you broke your leg earlier in the year and used six weeks for that, you only have six left."

Keary says it's always a good idea to check with your company's human resources department to clarify if you are eligible for FMLA leave, and for how many weeks you are eligible.

Besides the guarantee that you cannot be fired while caring for a newborn child, FMLA also protects the health insurance coverage if the parent gets insurance through his or her employer. "If you contribute part of that, you still have to contribute the same part even though you aren't getting a salary. So you might have to make special arrangements," McCormick says. "But the employer continues to pay just like it would normally."

For parents who decide to quit their job while on leave, McCormick says withholding that information from your boss could result in some problems if you get insurance through the job. "Under some circumstances the employer can recover the amount of insurance premiums it paid out on you for at least part of the leave," she says. "You might have to pay them back for some of those benefits." Once you tell your boss you're not coming back, they are no longer under any obligation to pay your benefits.

Not only is FMLA confusing to new parents, it can be confusing to employers too. To clarify the laws, the Department of Labor has a plain-English explanation of the rights and responsibilities of FMLA on its website, "If someone was concerned, I would recommend they go and look at that first," McCormick says. "That might answer the question for them without needing to go to an attorney. Sometimes we do need attorneys and sometimes we just don't."

If, after consulting the Department of Labor's website, you believe you need an attorney, McCormick suggests looking for one who specializes in FMLA law, employment discrimination or employment law. "Things you might ask the attorney are, 'How many of these kinds of cases do you do?' 'What's been your experience?'" she says.

What are your career plans after having a baby? Share your thoughts in comments area.


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