Maternity Leave: What It Means for Employers

What it means in practice

"Maternity leave" is an everyday term, not a single law. It usually means the time a pregnant or postpartum employee is away for prenatal appointments, pregnancy complications, delivery and physical recovery. Leave to bond with a new child, which any parent can take, is covered on the parental leave page. The EEOC draws the same line, telling employers to distinguish "pregnancy-related medical leave" from "parental leave."

The federal baseline: unpaid unless the employer pays. The Department of Labor says the FLSA does not require payment for time not worked, such as vacations or sick leave. FMLA leave is generally unpaid; the employee may choose, or the employer may require, that accrued paid leave run at the same time (29 CFR 825.207(a)). Leave paid under a disability plan can count as FMLA leave, but neither side may require substitution of paid leave while the plan pays, though they may agree to top up partial benefits (825.207(d)). Paid maternity leave therefore comes from employer policy, often alongside paid time off (PTO), insurance or a state program.

FMLA: who is covered. The FMLA covers private employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, plus public agencies and schools of any size (29 CFR 825.104). An employee is eligible after 12 months of employment and 1,250 hours of service in the prior 12 months, at a site with 50 or more employees within 75 miles (29 CFR 825.110). The entitlement is up to 12 workweeks in a 12-month period.

FMLA: what counts. The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care and for her own serious health condition after the birth, and leave may begin before the birth (29 CFR 825.120(a)(4)). Pregnancy incapacity qualifies even without a provider visit during the absence and even if it lasts three days or less; the regulations use severe morning sickness as the example (29 CFR 825.115(b) and (f)). DOL Fact Sheet 28Q adds bed rest and recovery from childbirth, including a stillbirth. A spouse may take FMLA leave to care for an incapacitated pregnant spouse or one recovering from childbirth.

FMLA: intermittent leave and the combined limit. A pregnant employee may take leave intermittently for prenatal examinations or her own condition without the employer's agreement; intermittent leave to be with a healthy newborn needs that agreement (29 CFR 825.202). Spouses at the same employer may share a combined 12 weeks for birth and bonding, but a state-law pregnancy disability period counts as FMLA leave for the mother's own condition and is outside that combined limit (29 CFR 825.120(a)(3)).

How it works for an employer, step by step. (1) For an expected birth the employee must give 30 days' notice, or notice as soon as practicable if timing changes, and need not mention the FMLA (29 CFR 825.302). (2) Within five business days of learning the leave may qualify, the employer sends an eligibility notice (825.300(b)). (3) For the mother's own condition, the employer may require a provider's certification, allowing at least 15 calendar days (825.305); DOL says certification may not be required for bonding with a healthy newborn. (4) Within five business days of having enough information, the employer designates the leave as FMLA leave (825.300(d)); a late designation that harms the employee can be interference (825.301(e)). (5) Group health coverage continues on the same terms, and the baby must be addable if the plan allows (825.209). (6) On return, the employee gets the same or an equivalent job (825.214).

Pregnancy Discrimination Act: equal treatment. The EEOC says the PDA applies to employers with 15 or more employees. Its regulation requires pregnancy-related disabilities to be treated like other disabilities in leave start and length, extensions, seniority, reinstatement and pay (29 CFR 1604.10(b)). Its 2015 guidance says an employer may not set a shorter maximum for pregnancy-related leave than for other medical leave, or compel leave while the employee can do her job. Because Title VII has no service requirement, an employee with under 12 months may not be denied maternity leave if others with the same tenure get short-term disability benefits (29 CFR 825.702(f)). Charges go to the EEOC, generally within 180 days, or 300 days where a state or local law also applies.

Paid leave for mothers and fathers. The EEOC guidance says parental leave must be offered to similarly situated men and women on the same terms, while leave for recovery from childbirth may go only to the employee who gave birth. Its examples: six weeks of parental leave for all parents plus up to ten more weeks of recovery leave for birth mothers is lawful; paid parental leave for mothers but not fathers violates Title VII.

Pregnant Workers Fairness Act: leave as an accommodation. The PWFA took effect June 27, 2023, and the EEOC's rule on June 18, 2024. Employers with 15 or more employees must reasonably accommodate known limitations related to pregnancy, childbirth or related conditions unless that causes undue hardship (29 CFR 1636.2 and 1636.4(a)). Accommodation includes paid leave (accrued, short-term disability or another benefit) or unpaid leave during pregnancy, to recover from childbirth, miscarriage or stillbirth, and for health care appointments (1636.3(i)). An employer may not require leave if another accommodation would let the employee keep working, unless she chooses leave or it is the only workable option (1636.4(d)). Unnecessary delay and retaliation are unlawful (1636.4(a)(1) and (e)). The EEOC says pregnancy itself is not an ADA disability, though related impairments may be; see disability leave.

After the return: pumping breaks. Under the FLSA as amended by the PUMP Act (December 29, 2022), most employees may take reasonable breaks to express milk for one year after the birth, in a place other than a bathroom that is shielded from view and free from intrusion. Breaks must be paid if the employee is not completely relieved from duty, exempt employees are covered, and employers with fewer than 50 employees are exempt only if compliance would impose undue hardship (DOL WHD Fact Sheet 73). See rest periods.

Exempt employees. For unpaid FMLA leave, an employer may pay an exempt employee a proportionate part of the salary for time worked (29 CFR 541.602(b)(7)). Outside the FMLA, full-day deductions for sickness or disability require a bona fide salary-replacement plan or state disability benefits (541.602(b)(2)). Hypothetical example: an exempt employee paid $1,200 for a 40-hour week uses four hours of unpaid FMLA leave for a prenatal visit; that is 10 percent of the week, so the employer may deduct $120.

Where states differ: California. States can add leave, pay or both; this example was checked November 2026. The Civil Rights Department (CRD) says pregnancy disability leave (PDL) applies to employers with five or more employees, with no tenure or hours requirement, and allows up to four months per pregnancy, which its required notice defines as 17 1/3 weeks. PDL covers prenatal and postnatal care, morning sickness, bed rest, childbirth and recovery, pregnancy loss and postpartum depression, and may be intermittent. The employer may require accrued sick leave during unpaid PDL but not vacation, must continue health benefits it normally pays and must reinstate the employee to the same or, in some cases, a comparable job. California Family Rights Act bonding leave (12 weeks) runs after PDL, and FMLA runs alongside both. CRD says a normal pregnancy typically means disability 4 weeks before the due date and 6 weeks after a vaginal birth or 8 after a cesarean, when state disability insurance may replace wages (2026 maximum $1,765 a week, per EDD). See California labor laws.

Example: one California birth. Hypothetical: an FMLA-eligible, full-time employee is disabled 4 weeks before a vaginal delivery and 6 weeks after. Those 10 weeks are PDL and FMLA leave, leaving 2 FMLA weeks. Her 12 weeks of CFRA bonding leave follow, the first 2 also using up FMLA. Total job-protected time: 22 weeks. On a 40-hour schedule her full PDL entitlement would be about 693 hours (40 x 17 1/3), so 293 hours went unused.

Where states differ: Washington. Washington Paid Leave, checked November 2026, requires 820 hours in the qualifying period and pays up to 90 percent of weekly pay, to a 2026 maximum of $1,647 a week. A birth parent may take medical leave during pregnancy or recovery, up to 16 weeks of combined medical and family leave, or 18 with a pregnancy-related complication such as a C-section. From January 1, 2026, job protection generally applies at employers with 25 or more Washington employees after 180 days of work.

Recordkeeping. FMLA employers must keep leave dates, partial-day hours, notices and leave policies for at least three years, and certifications and medical histories in confidential files separate from personnel files (29 CFR 825.500). Tracking these dates is part of absence management.

Questions employers ask. Is maternity leave paid? Not under federal law; pay comes from policy, insurance or a state program. Can we require PTO during FMLA maternity leave? Yes for accrued paid leave (825.207), but not while a disability plan pays, and not vacation during California PDL. Does a 20-person employer owe maternity leave? The FMLA does not apply, but the PDA and PWFA apply at 15 employees and California PDL at five. Can we ask for a doctor's note? Under the FMLA, for the mother's own condition; under the PWFA, only when reasonable (29 CFR 1636.3(l)). Can pregnancy absences count under a no-fault attendance policy? Not FMLA leave (29 CFR 825.220(c)).

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