Maternity and Parental Leave & Employees' Legal Rights

Many parents find it challenging to take a long period of time off from work to bond with a newborn or adopted child if that time is unpaid. However, parents (both mothers and fathers) and children benefit if they are given a prolonged period to bond. Some states have passed laws to allow employees to be paid maternity or paternity leave so that they can have this time to bond. These states include California, New Jersey, New York, and Washington, D.C. Other states leave it to employers to decide whether to provide maternity or parental leave as part of their benefits packages, and these policies may be specified in employment agreements.

Examples of State Laws

Each state’s law is different. In California, for example, parental leave is time that parents are able to take away from their jobs to bond with a new baby or child. Maternity leave includes both parental leave and pregnancy disability leave, while paternity leave is simply the parental leave. As of January 1, 2018, California's New Parent Leave Act went into effect and requires employers with at least 20 employees to give eligible employees a minimum of 12 weeks of unpaid, job-protected leave in order to connect with a new child. The leave must be used within a year of a new child's birth, foster care placement, or adoption. On top of the 12 weeks of parental leave, pregnant mothers also have up to 4 months of job-protected pregnancy disability leave prior to the parental leave.

For another example, in New York, there is a Paid Family Leave Law, which allows a worker to have some wages or salary replaced by the state if they are having a baby, or based on other medical reasons or to help family members when someone in the family is in active military service. This leave is job-protected and paid time off. Full-time employees who work at least 20 hours each week are eligible to take this leave after 26 consecutive weeks of employment. Part-time employees who work less than 20 hours each week are eligible for leave after working 175 non-consecutive days.

Family and Medical Leave Act

Across the country, eligible employees who work for employers that have at least 50 employees can take a maximum of 12 weeks of unpaid leave to bond with a new child, as long as various conditions under the federal Family and Medical Leave Act (FMLA) are met. Both new mothers and new fathers can take leave, and neither is favored over the other. Employers are forbidden from discriminating based on the gender of the parent with regard to this leave. Your employer is not allowed to shorten your FMLA leave or fire you for taking the leave because you are taking paternity leave rather than maternity leave.

An employee who gives an employer enough information to make it clear that the employee is in a situation that calls for FMLA leave is supposed to be told that they are entitled to FMLA leave if they are. An employer that fails to inform you of your rights and duties under the FMLA may have committed an FMLA violation. An employer that requires you to provide too much notice to take your FMLA leave also may be violating the FMLA.

Protection Under Multiple Parental Leave Laws

Some states have a counterpart to the FMLA. In California, for example, there is a California Family Rights Act that provides many of the same rights as does the FMLA. However, the New Parent Leave Act provides protection to employees of smaller employers. If a California employee who is a new father is eligible to take leave under at least two of the parental leave laws, he needs to take the leave concurrently, such that the total amount of paternity leave is 12 workweeks.

Last reviewed October 2024