The Maternity Leave Laws in Florida: What You Should Know
The Basics of Maternity Leave Laws in Florida
In the United States, the Family Medical Leave Act (FMLA) governs maternity leave to a large degree. This federal law applies to businesses of a certain size, and it gives mothers the right to take maternity leave for 12 weeks. Unfortunately, Florida does not have separate maternity leave laws, so the FMLA will serve as the basic framework on a federal level. If an employer is subject to the FMLA, they must allow eligible employees to take up to 12 weeks of unpaid leave when they give birth or adopt a child. While those are the only two situations that trigger the FMLA protections, an employee should also be able to take up to 26 weeks if a family member is called to Active Duty. The federal law stipulates that the leave can be taken in chunks or consecutively. These 12 weeks do not have to be consecutive, but they do have to be completed within one year after the employee’s child arrives in the home , either through birth or adoption.
Now, what if you work for a company that does not meet the size requirements for FMLA? On a state level, Florida does not have any laws that are particularly helpful at addressing this problem. That means that an employee may not have any ability to take time off for maternity leave, even if they work for an employer that is less than the federal minimum size like 50 employees. There are some precedents where the Florida courts have provided employee rights for pregnancy and childbirth, but these tend to be narrow restrictions of the broader FMLA guidelines. Notably, these protections do not include the right to a specific number of minutes or hours for pumping milk.
In Florida, maternity leave is broken down into medical and non-medical leave for mothers. In most cases, if a doctor believes a mother needs to go on maternity leave, the employer is required to treat it as family leave under FMLA.
The Federal Laws Affecting Florida Maternity Leave
On a federal level, the Family and Medical Leave Act (FMLA) is the most notable piece of legislation that impacts maternity leave. Under the FMLA, employees are guaranteed up to 12 weeks of unpaid leave following the birth or placement of a child into the home for adoption or foster care. To be eligible for this leave, an employee must have worked for their employer for at least 12 months preceding the date of the requested leave. They must also have performed over 1,250 hours of services for that employer in the past 12 months, and the employer must have at least 50 employees within a 75-mile radius. While employees are not entitled to paid leave under the FMLA, it does ensure that their jobs will be protected, and that returning employees will receive job restoration to the same or an equivalent position. While there are other federal laws, such as the Pregnancy Discrimination Act (PDA), that relate to pregnancy, childbirth, and related medical conditions in the workplace, they do not directly pertain to maternity leave.
Florida Maternity Leave Criteria for Eligibility
Eligibility Criteria for Maternity Leave Under Florida Laws
Under both Florida and federal laws, not all employees are entitled to maternity leave. To qualify for maternity leave under the Family and Medical Leave Act ("FMLA"), employees must meet certain eligibility requirements. FMLA requires covered employers to provide eligible employees up to 12 weeks of unpaid job-protected leave per year for the birth of a child and care for the newborn child within one year of birth.
To be eligible for leave under FMLA, the employee must:
To be eligible for FMLA protection, the employee must have worked for the employer for at least 12 months. The employee must also have worked at least 1,250 hours during the 12-month period immediately preceding the leave. Employers should also be aware that FMLA only applies to employers who meet the act’s definition of "employer".
How Long Can You Take Maternity Leave and the Benefits You Can Receive
For those that are eligible and qualify for maternity leave under FMLA, employers must provide employees with up to 12 weeks of leave in a 12-month period without pay to treat a serious health condition. Other forms of maternity leave or parental leave typically come from non-governmental sources, such as private employers providing paid maternity leave through an internal policy.
For those providers who work within maternity wards, there are varying rights to maternity leave depending upon the state in which services are rendered. Under Florida law, employees in Florida may have the right to time off for baby bonding and pregnancy recovery.
Employees typically use up accrued vacation and sick days when they go on maternity leave before applying for top-up insurance or any kind of long-term disability insurance benefits. However, some employers do permit unpaid family leave without exhausting these benefits. Maternity benefits, whether paid or unpaid, used by the employee while on maternity leave will count against the FMLA entitlement, if applicable.
The timing for maternity leave may differ by employer and the exigencies of the workplace. Provided that leave qualifies under FMLA, almost all leave is job-protected. An employee who takes maternity leave in compliance with FMLA is entitled to reinstatement to the same or equivalent position with the same pay, fringe benefits, and seniority status as prior to the leave. An employer must maintain health coverage that the employee had prior to her maternity leave; however, the employer may recover it at the end of the maternity leave if the employee does not return to work.
Employers providing maternity leave should explain an employee’s rights and the process to request such leave. This ensures consistency and clarity and protects against discrimination complaints by employees who are denied leave based on unpredictable factors.
Employer Policies on Maternity Leave
As noted above, there is no Florida statute or law that requires employers to offer maternity leave beyond what is required by federal law. However, Florida business owners should be aware of the role individual employer policies may play in extending or enhancing standard legal requirements. Whether an employer chooses to follow federal law or provide greater protections and leave periods, it is strongly encouraged to have a clear and concise maternity leave policy that lays out the rights of employees.
As discussed below, the law does not require leave to be unpaid. In a limited number of cases, such as for serious health conditions, maternity leave may be unpaid. Florida employers have the right to use whatever policy or system they desire to process requests for maternity leave. Whether an employer chooses to always secure medical documentation or offers paid leave , it should clearly state the nature of its policies.
By clearly setting out a precise and effective maternity leave policy, employers can protect themselves from potential lawsuits while providing necessary time off to employees. Unclear leave policies or lack of maternity leave policy altogether may expose an employer to potential discrimination. Florida offered unemployment compensation for maternity leave until 1995, and some employees may expect similar treatment. Public service employees with the State of Florida may also still receive maternity benefits through separate policies and statutory provisions. Finally, some Florida businesses may provide maternity leave through contractual agreements or collective bargaining agreements (CBAs).
Using Antidiscrimination Protections in Employment
The federal Pregnancy Discrimination Act ("PDA"), a 1988 amendment to Title VII of the Civil Rights Act of 1964, requires that expectant mothers be treated the same as all other employees, male and female, for employment purposes. It prohibits employers from intentionally discriminating on the basis of sex in the hiring, firing, promoting, granting leave, or training of employees.
The PDA defines unlawful sex discrimination to include discrimination on the basis of pregnancy or childbirth. According to the Equal Employment Opportunity Commission ("EEOC"), "the Act protects women against discrimination because of pregnancy-related conditions, including pregnancy, childbirth, or related medical conditions. The PDA also requires employers to treat women affected by pregnancy in the same manner that they treat other persons not so affected but similar in their ability or inability to work. For example, if an employer provides a light duty position to an employee unable to perform the full range of duties of her job, the employer must provide a similar accommodation to a pregnant employee who is temporarily unable to perform her normal duties." In order to make an independent claim based on the PDA, a plaintiff must show that she either suffered an adverse employment action because of her pregnancy or that she was treated less favorably than an employee "similar in their ability or inability to work."
Unfortunately, Florida law does not provide independent rights for pregnant employees. Florida Statute ยง760.06 does not create any independent cause of action; rather, it is a predicate unlawful employment practice for claims arising under the Florida Civil Rights Act. State courts have consistently required that a plaintiff bring a pregnancy discrimination claim under the Florida Civil Rights Act. Florida recognizes a cause of action for sex discrimination which explicitly encompasses pregnancy discrimination.
Applying for Maternity Leave in Florida
Applying for maternity leave in Florida can feel like a daunting task, but understanding the process is vital in planning for your growing family. Employers in Florida typically handle maternity leave through the Family and Medical Leave Act (FMLA) of 1993 and it is important to know whether you qualify for FMLA leave. FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year. To qualify, an employee must work for an employer with at least 50 employees and have worked for at least 1,250 hours over the past 12 months.
Once you know whether you qualify for FMLA leave, you will want to review your employer’s handbook for instructions on how to apply for maternity leave or speak directly with your supervisor or human resources department. In general, you will need to provide your employer with notice at least 30 days before the expected leave date. During this time, you can expect to be asked standard questions regarding your due date, whether you wish to use vacation time, and when you plan to return to work.
FL MA Cummings v. Hous. In Sec. & Urban Dev., 404 F. App’x 422, 424 (11th Cir. 2010) highlights this process. Here, HUD policy allowed an employee up to six weeks of paid leave for maternity leave, although the law only required FMLA leave be offered. The employee in the case was not given the option of maternity leave but denied FMLA leave because she had not worked the required hours to qualify. The court found it not to be an FMLA violation because it was still offered six weeks of leave. This ruling also provides guidance to Florida employers on what policies to offer for maternity leave.
Be aware that most employers will require you to submit a doctor’s note outlining medical conditions along with the estimated duration of your leave. This note should be presented to your employer upon your return. If you are unable to return to work after your due date, you will need to provide a second note that outlines the details of the extension. If you do not plan to return to work after your leave, you will need to discuss your options with your employer.
Current Developments and Future Directions
Recently, there have been no significant changes to Florida’s maternity leave laws. However, with the increased national focus on paid family leave, it is likely that we may see a push for new legislation at both the state and federal level in the near future. The lack of a statewide paid parental leave program in Florida stands in contrast to several other states that have taken steps to ensure both men and women are provided a reasonable length of paid time off for the birth and care of a newborn.
The pregnancy discrimination and family medical leave laws will remain , and many organizations will continue to voluntarily offer paid parental leave, but federal and state legislation that offers a reasonable length of paid parental leave may be in the horizon as society continues to evolve and offer the same benefits to women that are enjoyed by their male counterparts.