Paternity/Maternity Leave

Rob Wiley: My name is Rob Wiley, and today I am going to be speaking with Austin employment lawyer Colin Walsh about the issue of maternity leave. So Mr. Walsh babies, they’re a part of life, and people have them even when they are employed and obviously, that’s the kind of thing that employers need to be accommodating. Let’s say that someone has learned that they’re going to be having a baby. What are their rights to maternity leave?

Colin Walsh: Well, they do have a right to maternity leave. Under the Family and Medical Leave Act, they get up to 12 weeks of maternity leave.

Rob Wiley: Now is that leave paid or is that unpaid leave?

Colin Walsh: Unfortunately, that is going to be unpaid leave.

Rob Wiley: But at the end of the leave, you have the right to return to work. Is that correct?

Colin Walsh: Yes, that’s correct. At the end of that period, you do have the right to come back to the same job or an equivalent job.

Rob Wiley: And that’s probably where we see most of our issues because someone goes off on maternity leave, the employer brings in someone else to fill in for that position but then it’s time for the employee to come back and that person who was there, that is a temporary employee. The person who had her baby does have the right to return to work. Now FMLA leave, it doesn’t apply to all workplaces and it doesn’t apply to all employees. What are the threshold requirements for getting maternity leave through the FMLA?

Colin Walsh: Well, so as an employee, you have to have been at that jobsite for 12 months, and you must have had 12 hundred, I’m sorry, 1,250 hours of work. Now the employer, not all employers are covered. They have to have 50 employees within a 75 mile radius of the worksite.

Rob Wiley: But that still is a large number of women, probably most women who are in the workplace. Well, what about men? Do men have a right to take this leave as well?

Colin Walsh: Yes, they do. There is a right to paternity leave under the Family and Medical Leave Act.

Rob Wiley: And I think this is also an area where we see a lot of issues. A lot of times, employers say, but you’re the husband, you’re the father, why are you wanting to take this leave? But the law gives an equal right to take leave, for both men and women. And it’s not just births. It’s also adoption or placement of a child. You can take these 12 weeks of leave.

Colin Walsh: Yes, that’s right.

Rob Wiley: Let me talk about a situation that we sometimes see arise. Someone hasn’t been there for a full year. So, so she has yet to work for a full year for this employer so she doesn’t yet qualify for the FMLA. But by the time she has her baby, she will have worked there for the full year, she would be entitled to FMLA. Can an employer preemptively fire someone to keep, her from taking maternity leave?

Colin Walsh: No. No, an employee cannot preemptively fire somebody to prevent them from taking maternity leave. And you’re right, we do see that a lot.

Rob Wiley: Thank you, Colin.