Am I Eligible for FMLA Maternity Leave? The Three Checks

In the United States, the main federal law behind maternity leave is the Family and Medical Leave Act (FMLA). It gives eligible employees up to 12 workweeks of job-protected leave in a 12-month period, and the Department of Labor lists the birth of a child among the covered reasons. The word to notice is "eligible". Plenty of people discover they are not after they have told their manager and planned their finances. This post covers US federal rules; some states and some employers offer more.

Is FMLA the same as maternity leave?

No. FMLA is unpaid job protection, not pay. The Department of Labor's FMLA fact sheet describes leave, with your job protected, not a paycheck. Whether any part of your leave is paid depends on your employer's policy, any paid leave you have accrued and your state, because some states run their own paid family leave programs. Check your state labor department's site for yours.

FMLA also covers more than the birth. Recovery from childbirth is a serious health condition, and bonding with a newborn or newly placed child is a separate covered reason. Both come out of the same 12 workweeks.

What are the three eligibility checks?

The DOL fact sheet says you are eligible if you meet all of these:

1. 12 months with the employer. You have worked for a covered employer for at least 12 months. Those months do not need to be consecutive, so earlier stints can count.
2. 1,250 hours of service. You worked at least 1,250 hours for the employer during the 12 months before your leave starts. That is about 24 hours a week on average over a year. Your payroll system or HR can tell you your actual number.
3. 50 employees within 75 miles. You work at a location where the employer has at least 50 employees within 75 miles. Remote workers are normally assigned to the office they report to or are managed from, so ask HR which site counts for you.

There is also a fourth condition that is easy to forget: the employer itself must be covered. The DOL fact sheet lists private employers with 50 or more employees, public agencies and public schools. A small private employer may not be covered at all.

Write the three numbers on a page: your start date, your hours, and the headcount near you. If you pass all three, you do not need your employer's permission for FMLA. The employer must follow the rules.

What do you have to tell your employer, and when?

When the need for leave is foreseeable, as a due date usually is, the DOL says employees must give at least 30 days' advance notice; when that is not possible, notice is due as soon as practicable. In practice, tell HR in writing well before you go rather than waiting for the last month. Employers may ask for information from your health care provider before approving the leave, and the employer must allow at least 15 calendar days for you to return it. Ask HR for the exact form, put your request in an email, and keep the reply.

During leave, the employer is required to continue your group health insurance on the same terms as if you were working. Ask what your share of the premium is and how it will be collected while you are not being paid, so there is no surprise at your return.

What if you fail one of the checks?

Failing a check means FMLA does not protect you. It does not mean you have no protection and it does not mean you have no leave.

• Employer policy. Many employers give parental leave that is separate from FMLA and has its own rules. Read the handbook or ask HR in writing.
• State law. Several states have their own family leave rules with different eligibility. Search your state labor department's site, which is the authoritative source for your state.
• Pregnancy discrimination law. The EEOC explains on its pregnancy discrimination page that Title VII, as amended by the Pregnancy Discrimination Act, prohibits treating an employee worse because of pregnancy, childbirth or a related condition, and that covers employers with 15 or more employees. The EEOC also enforces the Pregnant Workers Fairness Act, which applies to the same size of employer and can require reasonable accommodations for known limitations related to pregnancy and childbirth. Neither law gives you a right to 12 weeks, but both apply even when FMLA does not.
• Sick leave and disability benefits. Recovery time may be covered by short-term disability or sick leave, depending on your plan and state.

If you are 100 or so hours short of the 1,250, ask HR whether your start date or hours count differently than you think; mistakes in payroll records are worth catching before you plan around them.

What should you do this week?

1. Find your start date and your hours, and write down the headcount at your site.
2. Read the leave section of your handbook, and your state's paid family leave page.
3. Send HR a written request that names your expected dates and asks for their forms.
4. Ask in writing how your health premiums will be handled during leave.
5. Keep copies of every reply.

If leave is already in progress and your job is in question, read can they lay me off while I'm on maternity leave, and if you are offered a package see do laid-off employees get severance. HR Helen, one of TrueTalk's AI advisors with a background in human resources, can help you draft the written request or plan what to ask. She is not a lawyer, and a dispute over whether you were eligible belongs with an employment lawyer or the Department of Labor's Wage and Hour Division.