Myths and Misunderstandings of Parental/ Maternity Leave

This article addresses the frequently asked questions and assumptions about parental leave, using scenarios based on PSP members' questions to the group.

Disclaimer:  This post has been written for educational purposes only by Park Slope Parents and was not meant to be legal advice and should not be construed as legal advice or be relied upon. The post may contain errors, inaccuracies and/or omissions. You should always consult an attorney admitted to practice in your jurisdiction for specific advice.

Remember, these are the basic facts:

You are covered under the Family and Medical Leave Act (FMLA) and as of January 2018, the NYS  Paid Family Leave Act if you meet the following credentials with your employer. Check the criteria for these laws. We also have a FAQ about NYS Paid Family Leave with A Better Balance that's helpful.


MYTHS and MISUNDERSTANDINGS:

1.  I work for a small realtor's office 2 days a week. Even though I have worked with the company for 8 years, my boss is refusing me any maternity leave. 


This is no longer legal in New York State 
TRUTH: Under the NYS Paid Family Leave Act you are eligible for paid family leave.

 

2.  After returning from maternity leave, I found out my company has restructured and my job is now redundant.  This has got to be illegal, right?

This can be legal. 
TRUTH: FMLA regulations - 29CFR 825.216(a) - confirm that while you are on FMLA your job can be made redundant.  The redundancy can take effect immediately.  However, employers must prove the redundancy was not because of your maternity leave.

 

3.  I'm a key employee at my company's New York location and I play a huge role in North East Coast sales division.  I just received a certified letter from my company claiming that they refuse to reinstate me on grounds that it will hurt business operations.  How can this be?  This must be against FMLA!

This can be legal
TRUTH: There are very limited circumstances when your employer can refuse to reinstate you.  You are considered a key employee if you:
    - are salaried and FMLA eligible
    - are amongst the highest paid 10% of all employees employed by the employer within 75 miles of the employees worksite.
    - restoring you will cause "substantial and grievous" economic injury to your employers operations. And as you must be notified by certified mail, no laws were broken.

        ...But why didn't they refuse my FMLA leave?

The FMLA allows your employer to deny only reinstatement, not the actual leave itself. The standard for this denial is very hard to meet.  We strongly urge you to seek out advice from an employment lawyer.

 

4.  My employer is insisting I use my accrued vacation and sick days as a part of my FMLA leave.  This is so unfair because I was planning on adding my vacation as a way to extend my maternity leave to 4 months.   

This is legal
TRUTH: FMLA guidelines allow employers to run paid and unpaid leave concurrently. Under FMLA, your employer can require you to use up paid leave first.  Many companies take advantage of this requirement to minimize your time away from your job.  However, your employer must provide you with written notice of their policies.  If your employer failed to provide you with written notice of their FMLA policies, then you may be eligible for your FMLA leave and you paid time off.

 

5.  Even though my employer doesn't offer any paid maternity leave, I can get disability insurance from New York State, right?

yes and no

TRUTH: According to New York state, your disability has to be determined and certified by a physician or certified midwife. 

 

6.  My employer is refusing to cover me in the company's health insurance plan when I'm on my maternity leave.  I'm confused because as I am not getting paid, they must not be required to cover my health insurance too. 

This is illegal. 

TRUTH: If you are have been part of your company's health insurance plan prior to FMLA, they must provide you with coverage during your time off.  It must be offered under the same terms and conditions so if you were paying a portion of the premium, you must continue to do so.

If you were covered under the health insurance under the employer at the onset of FMLA you are eligible for COBRA and the employer must provide it when you start your unpaid leave.  More information about COBRA can be found on their website: http://www.dol.gov/dol/topic/health-plans/cobra.htm

Cobra gives workers and families who lose health benefits the rights to chose to continue group health benefits provided by the group health plan for limited periods of time under certain circumstances such as voluntary or involuntary job loss, transition between jobs, death, divorce or other life events.