• themomattorney

What Every Pregnant and Postpartum Mother Should Know About Maternity Leave Rights During COVID-19

Updated: Jan 22

Hi mama, so you're pregnant or just gave birth during the scariest time in recent history, and now you're also worried about your job or confused about your rights? You're wondering: Can I use the Families First Act if I'm close to exhausting my maternity leave but I can't find childcare due to COVID-19? Am I eligible for a maternity leave under the new Families First Act if I'm not eligible under the FMLA? Can I stay home if I still have to show up to work but I'm worried about my baby being exposed to the virus? These are all really good questions. It takes a lot of mental energy to try to figure this all out. I hope you're being extra kind to yourself because no one asked you if you wanted to deal with any of this right now. Let me do what I can to make it easier for you, which is to break down the law so you don't need to spend another minute reading regulations and instead can spend all of your time putting body butter on your baby bump or cuddling your sweet new bebe.

In this article, I will cover how the new Families First Coronavirus Response Act rights affect existing maternity leave laws. These new laws were only implemented a few days ago, so I will give you my opinion, but please know there is no guiding regulations or case law on any of these questions, so please know I'm doing the best I can while having limited information. The silver lining with a new law is that you can be pretty bold in asking for your rights. If you're in one of the grey zones, just try asking for what you need. You never know.

The first section of this article will be about federal laws that will apply to all American mothers, the second section will be specific to California mothers, as I am a California-licensed attorney.

Are you ready?

Get your legal pads out. It's time for mama to go to law school.

Federal Laws

Update: the FFCRA rights expired at the end of 2020. However, we are expecting the new Administration to extend these rights soon.

Since April 1, 2020, there is a new law in effect that gives paid leaves of absence rights to parents. It is called the Families First Coronavirus Response Act ("Families First Act"). The Families First Act offers working Americans emergency sick leave and emergency family leave. The emergency family leave gives parents a job-protected 12 weeks paid leave of absence for day care closures and caretaker unavailability. The emergency sick leave gives employees 2 weeks paid leave of absence for 6 reasons, including having the virus, lockdowns, caring for someone with the virus, as well as day care closures and caretaker unavailability. I will only cover the elements relevant to new mothers here. If you want to see an in-depth discussion of this new law, please read my article here.

These federal laws apply to every working mother in America, but please know your state may give you additional protections. You will see below that California goes way beyond the federal minimum and gives mothers more rights and protections. Generally, labor-friendly states like the Northeastern states and the west coast will give mothers additional rights. Conservative states generally offer little above the federal minimum. If you are a resident of a state other than California, make sure to research your state rights. If you have specific questions about your employment situation in your state, make sure to consult with a local attorney. I have a few resources from trusted partners in other states on my library which can be accessed here.

Is everyone eligible for these Families First Act leaves?

No, only employees of private employers with less than 500 employees, including non-profit organizations, and employees of all public employers, regardless of size. Health care employers and emergency responders may exclude workers. Small businesses with less than 50 employees may exclude workers but only if it would jeopardize business viability.

Can I take leave under the Families First Act if the day care center I planned to take my baby when I return to work is closed?

Yes. If the day care facility you planned to use to return to work is closed due to COVID-19 precautions, you may use the leave.

Can I take leave under the Families First Act if my nanny, my mother, or my neighbor who was planning to watch my baby is unavailable?

Yes, if your mother or mother-in-law was planning on watching your baby when you return to work, but she is not available because she should not be exposed due to COVID-19, you are eligible for the leave. Similarly, if your nanny, babysitter or neighbor is home due to a lockdown order, and you cannot find anyone else to watch your baby, you can use the leave.

Can I still use FMLA for my maternity leave?

Yes, FMLA still exists. None of the existing employment rights are revoked. These new rules expand the existing FMLA. Please know that for the original FMLA leaves, you still need to abide by the original eligibility criteria, and it is unpaid. To read more about whether you are eligible for FMLA, click here.

Can I take a second maternity leave under the Families First Act if I've already taken FMLA in the past year?

No, if you have exhausted your FMLA leave in the past for bonding or to recover from a medical event, you are not allowed to request an additional 12 weeks. The rule is 12 weeks of FMLA leave per employee, per year. The new family leave law gives a new leave reason under the FMLA, it does not give more weeks. However, you can take the 80 hour emergency sick leave if you've exhausted your FMLA leave. If your child is older than one, you can take a second leave.

Can I be eligible for the Families First Act leave if I'm not eligible for FMLA leave?

Maybe! The emergency family leave applies to all employees of covered employers who have been employed for at least 30 days. The emergency sick leave applies to the employees of all covered employers, regardless of length of employment.

FMLA only applies to employees who answer yes to all of these three questions:

1. Do you work for a company with 50 or more employees within 75 miles of your jobsite?

2. Have you worked for this company for at least one year as of the start date of your leave?

3. Have you worked for more than 1250 hours (about 24 hrs/week) as of the start date of your leave?

This excludes a lot of employees who have not been employed for that long. So technically, an employee who has less than one year at the job may be eligible for the Families First Act leaves, and not for FMLA.

In addition, employees of employers with less than 50 employees are not eligible for FMLA leave, but they may be eligible for the Families First Act leave. This is because employers with less than 50 employees can only exempt themselves from the leaves if they can back up that granting the leave would jeopardize business viability. If the business is doing well financially, the employer would need to grant the new leave.

Can I be eligible for FMLA leave if I'm not eligible for the Families First leave?

Maybe! If you are employed by a private corporation with more than 500 employees, you may be eligible for FMLA leave, but not for Families First leave. To read more about whether you are eligible for FMLA, click here.

California Laws

What sorts of maternity leaves were already available to me as a mother working in California?

It depends on the size of your employer and how long you've worked there. If you work for an employer with 5-19 employees, you can take four months of Pregnancy Disability Leave under the FEHA. To learn more about this leave, click here. If you work for an employer with 20 or more employees, you can take four months of pregnancy disability leave, and you may be able to take an additional 12 weeks of bonding leave under the California Families Right Act, but only if you're eligible. To review eligibility requirements, click here.

Was there already a day care closure leave law in California?

Yes. Under the existing Labor Code 230.8, parents may take 40 hours off for school closures caused by emergencies and natural disasters. This rule only applies to you if you work for an employer with 25 or more employees. "School" includes licensed child care providers, which would include day care centers.

Can I stack the new Families First Act leave on top of California maternity leaves?

Yes. The new federal Families First Act leave will be in addition to state-offered leaves. Please know this is an entirely new area of the law so it's difficult for me to give you a hard yes, but technically, I believe you can stack all of them as long as you take all of them for different reasons. You would still need to be eligible for the underlying state leaves. If you are eligible for all, you could take four months of pregnancy disability leave for disability, followed by 12 weeks of the Families First Act leaves for daycare closure, followed by one week of daycare closure under Labor Code 250.8, followed by 12 weeks of CFRA for bonding, That's a total of 41 weeks of maternity leave. Holy moly. Maybe I should have another baby!

Please know California employers like to classify maternity leaves as FMLA, as it is in the favor of the employer to do so. The FMLA is the federal minimum, but you have way more leave rights when you request your rights given to you by the State of California. If your leave was classified as an FMLA leave, you would not get all of this time. You would not be eligible for the Families First leave if you were on FMLA in the past year (see above). If you were on CFRA bonding leave in the past year, you would be able to take another leave.

Eligible partners may also be able to stack leaves. Stacking leaves is an extremely complicated area of the law. It's all about using the right statutes and qualifying reasons, otherwise your employer will run all of these leaves concurrently. If you want to take your maximum amount of leave under the law, you should consult with an expert before asking your employer for these leaves. Your employer may not give you the complete and/or accurate information about your maternity leave, knowingly or unknowingly. This is a complex area of the law that takes years to master.

Why would I ask for privileges during an economic turmoil? I already took a maternity leave, I'm not going to ask for more. I'm going to get fired!

These are not privileges, these are rights. You are protected from retaliation for requesting or taking a lawful leave of absence. In a way, you can have more job protection because employers are more reluctant to terminate those in a protected class than those who are outside of the protected class. You will be in a protected class if you request or take the leave. If you try to telework while caring for your baby and you are unable to get your work done, you may be terminated for lack of performance. However, if you are on a leave, you may not be terminated for being unavailable due to your leave. You would still be allowed to be terminated for reasons unrelated to the leave, such as an entire department being eliminated due to budget cuts.

Are all of these leaves paid?

Only the Families First Act leaves are partially paid through the employer. To learn more about payment, click here. The other California maternity leaves are not paid by the employer, but may be offset through disability and PFL benefits through the EDD. Please read more about these benefits here.

I am pregnant and still expected to show up to my job site. I worry about the safety of my baby. Can I work from home?

As long as your doctor agrees. You are entitled to reasonable accommodations as a pregnant woman as long as you work for an employer with more than 5 employees. You would need your doctor to write a note that you can do your job but you need an accommodation. If the essential functions of your job can be done from home, and it is not an undue burden for your employer to accommodate, your employer would need to grant this request. For more information about reasonable accommodations, click here. If you're unable to perform your job from home, like if you're a NICU nurse, you may not be able to take these accommodations unless they can give you an alternative computer job. If a light duty position is not possible, you may need to start your maternity leave early. Please know the time you will take prior to birth will be lost after birth. You may have heard of the 4 weeks "use-it-or-lose-it" leave, but this is a financial benefit entitlement, not a leave entitlement. If you start your leave prior to birth, you will receive an additional 4 weeks disability pay that you would forego if you started your leave on your due date. However, you do not receive more time off if you start your leave early, only more money.

I am pregnant or on maternity leave and I just got fired. Is this illegal?

Only if you were fired because you're pregnant, because you asked for lawful maternity leave or because you took maternity leave. If you were laid off for reasons related to COVID-19 budget cuts, it would probably be a legal termination. Make sure to be cautious. Coronavirus budget cuts is an easy excuse for illegal terminations. If the business is doing just dandy and you're the only one who got a pink slip with the note "COVID-19 budget cuts," make sure to talk to an attorney. To learn more about your reinstatement rights after maternity leave, click here. To learn more about discrimination, click here.

I'm still confused and I still have questions. Can I talk to you?

Yes! I'm doing my best to explain these complicated concepts, but everyone's personal situation will be different. To set up a consultation with me, click here.

Please share this with your communities! Mamas have enough to worry about during COVID-19. Let's keep babies with their mamas as long as the law allows it.

DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Mamattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.

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