Existing federal and state laws can make granting maternity leave a tricky process. Here's our guide to help you best facilitate the leave and return of your expecting employees.
For a growing company, the absence of an employee who is also growing his or her family could potentially be crippling. According to a 2008 report by the Bureau of Labor Statistics, more than 60 percent of men and women in the labor force have children under the age of 6, so a good maternity leave policy is key to prepare for when your workers might become part of that expanding number. Establishing a solid maternity leave policy can drive employee retention, increase productivity and help protect your company against discrimination lawsuits. Here's how to construct it.
How to Create a Maternity Leave Policy: Considering Federal and State Laws
Before you begin drafting your policy, there is important legislation that should be taken into consideration. The Family Medical Leave Act, for example, requires employers with 50 or more employees to provide no less than 12 weeks of unpaid leave for the birth or adoption of a child, among other statutes. And while many companies have significantly less than 50 employees, the FMLA still provides a great framework to build your policy upon, says Krista Pratt, a labor and employment attorney at the Boston office of the New York City-based law firm Seyfarth Shaw. "You can adapt it to [fit your business needs], because for some, it may not make sense to voluntarily hand over 12 weeks of leave," says Pratt.
There's also the Pregnancy Discrimination Act, which requires employers to treat a pregnant employee the same as a temporarily disabled worker, if she is unable to perform because of her pregnancy. Several states have their own maternity leave laws and programs. Under the California Family Rights Act, for example, not only do employers have to grant employees 12 weeks of unpaid leave, but they might also be required to grant six weeks of paid leave. The U.S. Department of Labor has a collection of links for states with similar laws.
Dig Deeper: Pregnancy and Maternity Laws and Discriminatory Behavior
How to Create a Maternity Leave Policy: Solicit Advice
Now that you've consulted the various state and federal requirements, your next step is to assemble the task force behind the creation of the policy. This should include management, the HR and accounting departments, and even the expecting employees. "Don't define a policy without getting input from people it will directly impact," says Pat Katepoo, founder of WorkOptions.com and MaternityLeaveMentor.com, which advises professionals in negotiating flexible work and maternity leave. Katepoo says surveying or polling your staff could even be a helpful tool in shaping your policy. "Ask the people who have already given birth, 'What was your experience?'" she advises.
Dig Deeper: Listening to Your Employees
How to Create a Maternity Leave Policy: Who Should Be Eligible for Leave
The first thing your policy needs to do is to spell out who is eligible for whatever type of leave you will grant. Under the FMLA, employees must have worked a total of 12 months, or 1,250 hours in the prior 12 months, in order to qualify for the standard 12 weeks of unpaid leave. However, employers can lower this requirement to their discretion.
Anthony Hall, a labor and employment lawyer at the Reno, Nevada office of the law firm Holland and Hart, says you may want to consider including parental or paternal leave in your policy, since the FMLA, as well as many state laws, cover discrimination based on sex and requires employers to grant male employees time to care for the child, as well. Many employers even allow husband and wife employees to share leave time.
Dig Deeper: How to Set a Workplace Vacation Policy
How to Create a Maternity Leave Policy: Research the Varying Types of Leave
The Different Types of Leave
Next, you should explain in your policy the different types of leave employees can take. Hall advises granting the following types of leave:
• Intermittent leave. This type of leave covers single events, such as a doctor's appointments and small emergencies that just come up, Hall says.
• Reduced-schedule leave. In the case that an employee's work may be too strenuous, you can reduce their schedule to fit their physical needs, Hall says.
• Block-of-time leave. This is an extended period of time that will likely be granted after the employee or the employee's spouse has given birth, or if there are health complications prior to giving birth.
Considering Paid Leave
While the FMLA doesn't require companies to offer paid leave to employees, you might want to consider providing some type of pay in order to encourage valuable employees to return to work. This can also make your business more attractive to prospective hires – especially in majority-female industries.
"Paid leave could be a hardship for small businesses, but if you can go that route, consider what's practical regarding the number of weeks," says Katepoo. "Assess what's feasible – don't dismiss some of these elements of generosity. The key thing is to offer something that allows you to demonstrate your supportive culture."
The following are a few ways you can help ensure employees are able to receive some kind of financial support while on maternity leave:
• Employer-paid leave. This is probably the most costly option, in which the employer continues to pay the employees salary while out on leave. However, instead of offering full-time pay, you could offer partial or a percentage of the worker's regular pay.
• Disability leave. Employers can set aside paid time for an employers' injuries or medical complications, but what most do, says Hall, is adopt an insurance plan that will help pay the leave so that it doesn't come directly out of pocket.
• Vacation/sick leave. Many employers allow their employees to use vacation or sick time while on maternity leave, says Hall, but it should be noted that this could become expensive, as well. "What if I've accrued 14 weeks of paid time off? That can be a substantial financial hit," he says.
Dig Deeper: How to Improve Employee Retention
How to Create a Maternity Leave Policy: Include the Fine Print
Notices and Certifications
Your policy should include a clear explanation of what types of forms or notices will be required in order for the employee to be granted leave. The FMLA has a specific form called the WH380 that many employers adapt for their own use.
It's also imperative that you distinguish exactly how long the employee can wait before turning in the notice, as well as who they should give it to, says Hall. The FMLA breaks this down between foreseeable leave (such as the baby's due date) and unforeseeable leave (such as medical complications). FMLA-covered employers can require employees to notify them within 30 days of their foreseeable maternity leave, and within one to two business days of unforeseeable leave. Technically, Hall says, an obviously pregnant employee can wait until that 30-day mark to request leave, but it would be wise to ask employees to "give as much notice in advance as you possibly can" in the policy.
If you know of an employee who hasn't yet discussed his or her foreseeable leave with you, it's important to be smart and tactful in your approach. While it's not illegal to ask an employee if she's pregnant, if a worker feels that he or she is being forced to take maternity leave, a discrimination suit could be lurking around the corner. Hall suggests sending all of your employees a memo, or holding a general human resources meeting, to remind everyone of the notification requirements that must be upheld in order to receive leave.
Explaining What Benefits Will Apply
The next step in your policy is to explain to the employees what benefits they will still be eligible for while on leave. Under the FMLA, employers must continue paying insurance premiums while the employee is on leave, which requires telling employees in your policy that they must continue to uphold their portion as well. If the FMLA doesn't apply to your company, you don't have to keep making those payments, Hall says. But if your policy says you're going to stop, then COBRA can kick in for the employee, which could become more expensive for the employee because he or she must start paying the entire premium themselves. "This can be really cost-prohibitive for the employee to take this maternity leave that you intended to be a benefit," Hall says. "I typically recommend these employers to talk to a health insurance broker to find out what makes sense to them.'
Dig Deeper: An Example Response to a Request for Leave
How to Create a Maternity Leave Policy: Facilitating the Return of Employees
The FMLA requires that employers reinstate employees returning from their 12-week leave to their same positions. However, says Pratt, if the employee isn't able to return immediately, there are different approaches that can be taken, especially if the employee is valuable to your company. "Keep it open to say that there is a possibility to extend leave," she says. "Don't just have a knee-jerk reaction that says if you don't return you lose your job." If the employee has post-delivery complications, you might even be required to extend the leave, in order to comply with the Americans with Disabilities Act, Pratt says.
For new mothers who are able to work but might require certain physical or environmental provisions, there are also flexible work options such as telecommuting. If you go with this, says Katepoo, keep in mind that the employee may still require a lighter load. "My concern would be that the woman gets enough leave time before she does some work from home," she says. "Working from home is not a replacement for maternity leave, so that when you get home with your baby, you can just get started again."
Many businesses are also instituting programs that allow mothers to bring their newborns to work, so that they don't have to leave their careers behind to bond with or care for the child. "It makes it less likely that [the employee] will need to quit completely, from either daycare costs or from separating from the baby because they're so young," says Carla Moquin, founder of the Parenting in the Workplace Institute, an organization in Salt Lake City that assists businesses in setting up the programs. Most companies, she says, require the parent to sign a legal waiver form in the event of an injury sustained by the child in the workplace, and to designate a co-worker as an alternate-care provider.
Dig Deeper: The Pros and Cons of Babies in the Office
How to Create a Maternity Leave Policy: Enforcing Your Policy
According to Pratt of Seyfarth Shaw, companies often make the mistake of creating a policy and failing to train managers to enforce it. "If one of the goals here is to make sure you retain these valuable employees, you're going to lose that if you have this slapdash policy that they don't understand," says Pratt. After your policy in place, you should set up a process of correspondence in advance, so that employees know what to do when the policy actually has to be used. For example, "He or she should be well-informed about where leave starts and stops and who to notify," she says. "It really helps to have a well-trained HR staff."