Maternity Leave: Does it really exist?

by Jay Hammond, staff counsel

Entitlement to maternity leave is a frequent topic of discussion between members and ISEA staff.

Establishing your specific rights to maternity leave can be very confusing because the source of those "rights" will differ among employers. Therefore, establishing your specific rights requires a determination of the "sources" of those rights applicable in your district, AEA, or college. Sources establishing rights to maternity leave in any given instance include federal and state laws, collective bargaining agreements, and board policies.

All employees are, of course, entitled to twelve weeks of unpaid leave upon the birth (or adoption) of a child under the federal Family Medical Leave Act. It is, however, whether a person is entitled to some type of paid leave that is usually a source of contention.

Since the mid 1970s, sex discrimination laws have been interpreted to require sick leave be made available to a pregnant woman before and after the delivery, if the pregnancy or delivery results in a medical disability, to the same extent sick leave would be available for any non-pregnancy related medical disability.

In other words, if the pregnancy, or the birth of the child, causes an actual medical disability (a normal pregnancy is not considered to be a medical disability), the woman is entitled to paid sick leave in such amounts as she has accumulated. If the leave causes the exhaustion of accumulated sick leave, the balance of the required medical leave, up to a maximum of twelve weeks, can be taken as unpaid leave under the FMLA.

However, some employers (private as well as public) have policies that allow a new mother to take six weeks off after the birth of a child, and to utilize accumulated sick leave in order to be paid for that time, irrespective of the presence of a medical disability.

If the mother has six weeks or more of accumulated sick leave, the entire leave would be paid leave under such a policy. If the accumulated sick leave is less than six weeks, she will be paid for the leave according to the total of accumulated sick leave, and the balance of the six weeks will be unpaid. When an employer offers such a policy, the employee could conceivably take six weeks of paid maternity leave (if she has six weeks of accumulated sick leave) and then take another six weeks of unpaid FMLA leave for a total of twelve weeks.

However, it is critical to remember that an employer is not legally obligated to provide any paid maternity leave unless the employee is medically disabled (in which event she is entitled to sick leave) or unless the collective bargaining agreement provides for such paid leave. While maternity leave is clearly a mandatory subject of bargaining, historically there has been a paucity of negotiations on this topic.

Thus, the extent of your entitlement to maternity leave in any particular school district, AEA, or college is dependent upon what sources of leave are available. If no policy exists and there is no provision for maternity leave in the collective bargaining agreement, then entitlement is limited to the FMLA (always) and sick leave (if you are actually medically disabled due the pregnancy or childbirth). If your employer has a policy related to maternity leave, then you are entitled to exercise your rights as delineated in that policy.

These are the reasons an employee of the ABC school district may have more extensive rights to maternity leave than an employee of the XYZ school district. Usually the critical distinction is the existence of a policy allowing accumulated sick leave to be taken for a prescribed number of weeks after the birth (regardless of a medical disability).

Once again, these policies are not required by law, but over time they have come to be recognized by many employers as an "industry standard." It is often used as a recruitment tool, but the adoption of such a policy is purely discretionary on the part of the employer.

If your employer does not have such a policy, the employees may always consider lobbying the board for the adoption of such a policy. In the alternative, bargaining locals may approach the issue at the bargaining table. Any takers?

ISEA Communique, December/January 2007