Legal or Illegal?
Schools with 50 or more employees are required by federal law to provide unpaid Family and Medical Leave (FMLA) to eligible employees to attend to personal/family illnesses. Some schools have gone beyond this to additionally (and voluntarily) provide paid maternity leave to pregnant employees (with some schools extending this benefit to fathers as well as adoptive parents). For example, the employee receives two, four, or six weeks of paid time off at time of giving birth, in addition to any paid sick/personal time that they may have available. The question has been raised whether this is discriminatory—i.e., discriminates based on gender and/or disability by providing benefits to pregnant women that it does not provide to non-pregnant women or men.
We’ve checked with our employment attorneys on this and … they indicate that this issue has not been litigated at this time. What does that mean in plain English? While it is always possible that a court may rule on the question in the future, there isn’t any reason to consider maternity pay policies illegal or discriminatory at this time. Historically, courts have been concerned with the opposite issue—i.e., trying to ensure that pregnant employees weren’t given less benefits than other employees. It is on this basis that maternity is now recognized as a temporary disability and must receive at the least the same benefits coverage as other temporary disabilities. This doesn’t mean that it can’t be given additional benefits—which is essentially what a paid maternity policy does.
As with all legal questions, we recommend that you consult with qualified employment law counsel in your state.
Coordinating Paid Maternity Leave with Disability Benefits and FMLA
There are too many possible permutations to discuss here, but suffice to say, coordinating paid maternity leave with STD benefits and unpaid FMLA leave can get very complicated very quickly. To this end, we recommend that all schools with paid maternity and/or STD benefits review their policies to ensure that they are administering all of these plans consistently. A few questions to review:
- Is it clearly communicated whether paid maternity time is used before or after paid sick/personal time?
- And, is this followed by STD pay (usually partial pay benefits, on the order of 60% of salary)?
- And, is maternity leave concurrent with FMLA leave time (or does it follow FMLA leave time)?
Depending on how complicated and interrelated your policies are, we find that it is often helpful to sketch out a brief example in your employee handbook, to help employees understand what they can expect to happen with sick, maternity, and disability benefits in the case of maternity.
