Preparing for Maternity Leave: Advice from an Employment Rights Attorney
Preparing for birth and the postpartum experience can be a demanding time. Many mothers carry the burden of figuring out their own maternity leave plan and are left to navigate contradicting policies, rules, and regulations that involve a lot of mental and emotional duress at a time when clarity and guidance are needed most. Having seen the impact of the motherhood tax on other women, new moms, in particular, may not feel empowered to assert their rights confidently. Add to that the pervasive mom bias, and you realize just how professionally vulnerable mothers are at work.
That is precisely why it is essential to understand your maternity leave rights and adequately prepare yourself to be your own best advocate. With the right resources and information, you can embrace the experience of motherhood and feel empowered to make the best choices for your family without compromising your professional ambitions. As a maternal rights attorney, there are a few things I'd like to share with you that will have a significant impact on your decisions.
We often hear that the US does not have any maternity leave rights. That is not exactly true. The US has a complex network of federal and state maternity leave rights. What is true is that there is no paid maternity leave at the federal level. There is an unpaid maternity leave law at the federal level (FMLA), but not everyone is eligible.
The good news? Despite the federal government doing such a poor job supporting parents at work, many states and some cities have taken it upon themselves to provide their residents with additional leave rights and benefits options.
The tough news? Many employees do not know about these policies, and many employers do not want you to know. Shocking as it may seem, an employer has no obligation to educate you on your leave rights. It is up to you, the employee, to understand and demand these rights. In fact, your employer may not even really know. After all, many managers and HR professionals are as confused about these rules as you are. I've seen more than one case of a person having to figure out their rights and then educate their employers, especially if they are the first person at work to have a baby. And if you're thinking that sounds a little unfair; I couldn't agree more with you! Here are some things to keep in mind as you advocate for your rights.
Know Your Rights
✅ DO: Assert your rights under state law.
You will need to proactively research what the laws are for your state and then use the names of the statutes to request the specific leave. It can be time-consuming, but you may receive much more time off and financial benefits if you ask for your rights under your state's laws.
✅ DO: Understand the "language" of your rights.
To make matters even more confusing, there is no "maternity leave" right, only disability leave and bonding leave. You will be entitled to only disability leave, only bonding leave, both disability leave and bonding leave, or neither. The classification of your leave is dependent on where you live, the size of your employer, and your length of employment.
✅ DO: Investigate if you can take your leave in smaller increments.
I often advise my clients to save some of their time for further along in their postpartum journey. If the baby gets sick or they need to attend to older children in the summer, they'll have that backup time. Another option with incremental leave is to return part-time for a few weeks. If you are not ready to return to work upon the expiration of your leave rights due to postpartum depression or anxiety, you may be entitled to an extended leave under disability laws. You should discuss this with your doctor and your employer.
❌ DON'T: Ask what your company's maternity policy is.
Sounds backward, right? But you will run into employers who intentionally mislead their workers by providing parental leaves that misrepresent the law. I have seen it many times. An employer can legally provide you with a minimal leave policy, and it would not be against the law. For example, if you live in a paid leave state and your employer provides you with a basic FMLA policy - that would be your minimal entitlement under the law.
❌ DON'T: Get your legal information from Instagram accounts or motherhood blogs (UNLESS the information is written by an employment attorney specialized in maternal rights, like me).
I have seen too many blogs and accounts misrepresent maternity leave laws. These accounts and blogs often have the right intentions and want to support mothers but end up doing more harm than good. Most commonly informing their audience that they have no rights to time off. As a result, many women do not ask for what they are entitled to and end up rushing back to work much faster than they had to.
❌ DON'T: Consult government websites on your leave rights, either.
These websites often provide incomplete information. The most trustworthy source will be an employment attorney's website in the biggest city, closest to where you live. And make sure they represent the workers and not the businesses, as attorneys representing businesses often educate their clients on how to minimize maternity leaves. Worker-side employment attorneys teach you how to maximize maternity leaves. Other great sources are organizations or nonprofit groups that focus on women's rights or labor rights, such as Legal Aid. Many of these groups often provide free training or resources.
Inform Your Employer and Team
✅ DO: Inform your direct supervisor personally.
Once you have armed yourself with accurate information, you need to inform your employer of your pregnancy. I suggest telling your direct supervisor personally so they do not feel bypassed. Then email your supervisor, cc'ing Human Resources, and include:
1. A confirmation of your notice of pregnancy
2. Your expected due date
3. A rough maternity leave plan
✅ DO: Provide notice of your pregnancy as early as you feel comfortable.
Hopefully, your employer will help and support you during your transition, but keep in mind that they may be concerned about your absence. This is one of the reasons I generally advise women to provide notice as early as they feel comfortable. Once your employer knows you are pregnant, you are protected from discrimination on the basis of pregnancy. As an example, if you are not performing well due to morning sickness and your employer does not know you are pregnant, you have no protection against an employer's disciplinary actions. Early notice also ensures you have plenty of time to prepare for your absence.
✅ DO: Offer to help find and train your replacement or to finalize projects before your absence.
I generally counsel my clients to be cooperative when preparing for their maternity leave. It may take many conversations between you and your employer to set up your leave plan, and that is standard. You may also need to provide some medical information about physical or emotional restrictions, especially if there are certain complications. This information can often be necessary to receive the accommodations and time off you need to protect your body and baby.
✅ DO: Inform your colleagues and clients- when you're ready.
Once you have set up a rough leave plan with your employer, inform your colleagues and clients. Let them know about the leave plan as well. Often, coworkers can feel frustrated or resentful when they have to take over some or all of the workload during your leave, and communicating with them is essential. If you believe your team may be understaffed, inform your employer and advise them to find a temp.
While You Are On Leave
✅ DO: Send a reminder about why you are on leave.
After your baby is born, send your employer and your team a baby announcement and give them an update on your health. If you had a challenging birth experience, you might need additional time off. It's best for your employer to know this as soon as possible. A few weeks postpartum, check in with them and reassure them that you will be returning as planned. They may be concerned that you will not come back, as this is often a fear many employers still have about working mothers with new babies. Confirming your return date will help your return-to-work transition down the line.
✅ DO: Discuss pumping options and privacy before you return to the office.
As your return date approaches, and if you plan to pump, sit down with your direct supervisor and HR to go over your pumping plan. Make sure there is a space for you and that everyone is aware of your availability.
✅ DO: Remember that your maternity leave may not be a factor in promotional decisions or performance evaluations.
Simply put, you may not be penalized for going on maternity leave.
❌ DON'T: Be concerned about losing your job or being replaced.
During your leave, your employer may not ask you to do any work. While on leave, you may be concerned that a temp will replace you, but that would, in most circumstances, be unlawful. After your maternity leave, you are entitled to your job back, as long as you did not exhaust your leave rights.
I hope these tips were helpful and that you share this article with your friends so they can be informed about their rights too!
