Hypothetical question: Preemies & Maternty Leave?

August 24th, 2010

Libby283, A mama to be posted the following “hypothetical question”  to the community on The Bump.

This is just a hypothetical question and wondering if any other ladies had it happen and how it was handled…

What happens with maternity leave if you have a preemie baby that will require a lengthy hospital stay. For instance I only get 6 weeks maternity leave with my employer. If I delivered tomorrow, at 30 weeks, the baby would be in the hospital for the duration of the maternity leave. Does your doctor & employer let you go back to work early and then use the remaining leave time for when the baby comes home?

Just curious, but I hope I don’t have to worry about it as a reality.
There were some conflicting responses to her question, and I thought it a really good question to respond to on Mamas on Bedrest & Beyond. We’ll also be posting a reply on The Bump.

First and foremost, Libby283 is entitled to 12 weeks of unpaid medical leave as stipulated in the United States Family Medical Leave Act (FMLA). This act states that eligible employees (who work for companies with 50 or more employees) are entitled to up to 12 weeks of unpaid leave with guaranteed job protection each calendar year to,

  1. Deliver a baby,
  2. Bring home An adopted or foster child
  3. Care for a critically ill family member such as a spouse, child or parent
  4. Heal and recuperate from serious illness.

Here is the actual text of The Family Medical Leave Act as posted on the US Department of Labor Website:

The Family and Medical Leave Act (FMLA) provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period to eligible, covered employees for the following reasons: 1) birth and care of the eligible employee’s child, or placement for adoption or foster care of a child with the employee; 2) care of an immediate family member (spouse, child, parent) who has a serious health condition; or 3) care of the employee’s own serious health condition. It also requires that employee’s group health benefits be maintained during the leave. The FMLA is administered by the Employment Standards Administration’s Wage and Hour Division within the U.S. Department of Labor.

So Libby283 is actually covered by the law as well as her employer.

What gets sticky is when people try to combine two or more leave policies to get more time off.  The scenarios play out very differently depending on your employer, your state laws and how you choose to use the federal law. Recently in Massachusetts, the courts ruled that the Massachusetts Maternity Leave Act entitled women to 8 weeks maximum for maternity leave (See Massachusetts Maternity Leave Act: No Help for Mamas on Bedrest). However, since that is only a state ruling, women could then attach an additional 12 weeks onto their leave as stipulated by the Family Medical Leave Act. What is allowed varies from state to state so women planning to become pregnant should find out what they are entitled to and to make provisions in the event of a complicated pregnancy (requiring bed rest) and/or a complicated delivery requiring an extended hospital stay for mama, baby or both.

What employers choose to do becomes another matter. Libby283’s employer can say, okay, you can have 6 weeks paid leave (not sure if she is being paid or not) but if you want the entire 12 weeks, the remaining 6 weeks is unpaid. In that way her employer has not violated FMLA and has not breached the company policies. Likewise, the company can say, you are entitled to the 12 weeks of unpaid leave as stipulated by FMLA, but we are not obligated to pay you. Or, if they are a really family friendly company, they may even offer 12 weeks of paid leave (haven’t seen this one in a while, but one could hope!)

As the law reads you are entitled to 12 weeks family medial leave total per calendar year. So Libby283 could in fact split her time off between when she actually delivers and is discharged and when her baby comes home. While this is good in theory, it is my experience that when a mama has a preemie, she is not back to work but in the NICU any chance she gets, so time off could still be an issue.

It’s clearly evident from Libby283’s question and the laws that this is a confusing issue.  Mamas on Bedrest & Beyond is committed to working with other organizations to advocate for improved maternity privileges including extending maternity leave and having maternity leave be paid. Subscribe to our blog and e-newsletter to stay abreast of what is happening with maternity leave and how we are working to initiate change at local, state and national levels.

3 responses to “Hypothetical question: Preemies & Maternty Leave?”

  1. Scott Behren says:

    For more information on your rights under the FMLA and the Pregnancy Discrimination Act, feel free to check out my employee rights blog http://www.takethisjobnshoveitblog.com.

  2. James says:

    FMLA only applies to companies with 50 or more workers. You need to add that detail, or this article is incorrect.

  3. Darline says:

    You are right. Thank you.

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