By Weisberg Cummings, P.C. on April 10th, 2024
Having a baby is an exciting time in your life. However, it’s also a time that brings about many changes. If you work outside the home before your child is born, you might wonder how you’ll take time off to prepare for the birth and care for your newborn. You might be entitled to time off for parental leave, depending on your job. As you plan for your family’s future, understand how paternity and maternity leave laws work in Pennsylvania and what you must do to prepare for it.
What Are the Maternity or Paternity Leave Laws in Pennsylvania?
Parental leave in Pennsylvania is primarily governed by federal laws, including the Family and Medical Leave Act (FMLA). The FMLA provides unpaid, job-protected leave for qualified employees for a specified period. Thus, although the employee is not entitled to receive wages or salaries during their leave period, the employer cannot impose sanctions without lawful justification. An individual can take time off to care for their newborn or adopted child within the first year of birth or placement. The FMLA has been in effect since 2003.
As of October 2020, the Federal Employee Paid Leave Act (FEPLA) has made it possible for eligible employees to take up to 12 weeks of paid parental leave in relation to childbirth or the placement of a child in adoption or foster care.
While other states have laws akin to the FMLA, Pennsylvania has yet to adopt a universally applicable legislation. A bill has been introduced in the General Assembly of Pennsylvania to accommodate, among other things, paid parental leave for eligible employees under similar terms as the FMLA — but with pay. The government workforce in Pennsylvania may also seek paid parental leave under the human resources policy, which the Pennsylvania Office of Administration introduced in October 2020.
Are You Eligible for FMLA for Maternity or Paternity Leave?
To qualify for parental leave under the FMLA, you must be a parent of a newborn, foster or adopted child and work for a covered employer. Covered employers include:
- Private or public schools.
- Private companies with a minimum of 50 employees within 20 weeks of the year.
- Government or public agency
Additionally, you must meet the following criteria:
- Work for the employer for at least 12 months before your leave starts.
- Put in at least 1,250 service hours for the employer during the 12 months before your leave start date.
- Work at a site with at least 50 other employees within 75 miles of that workplace.
To meet the 12-month employment requirement, the 12 months don’t have to be consecutive. For example, you could work for the employer every spring and summer for six months. After two years, you’d meet the 12-month requirement. To complete the 1,250 hours of service requirement, you’d generally have to work at least 24 hours a week for 12 months.
When Can You Take FMLA Parental Leave?
You can use your parental leave under the FMLA to bond with your newborn or adopted child or a child in foster care. You may also take unpaid leave for pregnancy-related reasons or to care for a newborn with health challenges.
In the case of adoption of foster care, besides bonding with the child, you may also take FMLA leave to do the following:
- Attend court sessions.
- Attend counseling sessions.
- Travel to complete the adoption process.
- Consult with professionals such as attorneys and doctors.
Both parents can take parental leave. Mothers and fathers eligible for FMLA leave can take up to 12 weeks to care for their new child, although this may be limited to a total of 12 weeks for parents who work for the same employer.
You should also note that if you used any of your allotted 12 weeks of FMLA in any 52 weeks for other personal or family medical conditions, this time can be counted against your eligible FMLA time to use related to your child’s birth, adoption or foster care.
How Much FMLA Leave Can You Take?
Eligible employees are entitled to 12 weeks of unpaid leave over 12 months. There is no requirement to use your leave all at once. You can take them as individual days within that year. For example, a parent can take four weeks of FMLA leave for post-natal care and spread the rest throughout the year to bond with the child. Parents can also decide to spend time with their newborn or alternate between themselves. The leave may expire if the parent fails to use it within 12 months.
When Should You Tell Your Employer About Taking Parental Leave?
Since parental leave is foreseeable, you should give your employer notice at least 30 days before taking the leave. When you give notice, you don’t have to specifically state that you’ll be taking FMLA leave — at least not at first. You’ll need to provide enough information to your employer so they know the leave might need to be covered by FMLA. You should also let the company know when you plan on taking the leave and how long.
What Is Your Employer Prohibited From Doing?
Employers may violate the FMLA if they do any of the following:
- Denying leave: An employer may not prevent you from taking parental leave under FMLA without lawful justification if you meet the requirements.
- Force leave: Employers cannot force a pregnant employee or new parent to take parental leave. You can choose how long and when to take the leave so far as you meet the legal requirements.
- Impose sanctions: Employers are prohibited from imposing sanctions on employees who legally take parental leave. Examples of sanctions include terminating your employment contract, demotion or withholding benefits, such as health insurance coverage.
- Count leave as absent days: Employers cannot count your parental leave days as absent. FMLA leave is distinct from ordinary off days, although employers may record FMLA eligible days against an employee’s FMLA balance even if the employee uses Paid Time Off or paid sick time.
Pennsylvania Parental Leave 2024: What to Expect
The General Assembly of Pennsylvania, the state legislature, is considering a bill that provides for paid parental leave. The bill seeks to address the gaps in the FMLA relating to unpaid leave, providing parents with the needed financial support. Employers must provide qualified employees with at least 12 weeks of paid leave based on the same pay rate before the leave. The 12-week leave would be counted against the employee’s FMLA leave.
The law also protects employees, providing them with the same rights under the FMLA. Employers cannot discriminate against employees or impose sanctions solely because they exercise their rights under the law. If passed into law, the bill will be known as the Paid Family Law Act.
Schedule a Free Consultation With Weisberg Cumming
If you have a question about maternity leave in Pennsylvania or concerns about your employer’s behavior, you can trust the employment attorneys at Weisberg Cummings, P.C. to have an answer for you. To learn more about your rights as a pregnant employee or new parent who wants to take maternity leave, contact us to set up a free consultation today!
