Many people mistakenly think that the legal right to maternity leave or paternity leave is universal, but the harsh reality of being a working parent in the U.S. is that paid family leave is far from a guarantee. In fact, research shows that only 27% of private sector workers have access to paid family leave.[1] And for parents who work at small businesses, it's even harsher: There isn't even a universal guarantee of unpaid leave that protects your job.
The Family Medical Leave Act of 1993 (FMLA) (which guarantees job protection for up to 12 weeks of unpaid leave for the birth or adoption of a child) only applies to companies with more than 50 employees in a 75-mile radius.[2]
"There's no federal law that requires a small employer to allow family leave, paid or unpaid," explains Margo Pillischer an employment attorney at Ross, Scalise Employment Lawyers in Austin, Texas.
However, there are some other laws you can lean on for protection, plus options for securing paid leave, too.
Step 1: Check which federal and state rights apply to you
The first step to planning your parental leave if you work for a small business is to read up on your individual rights."Until we have national, uniform federal protections, the advice is so dependent upon where you are," says Deborah Vagins, a civil rights lawyer and national campaign director for Equal Rights Advocates.
If your company is too small for FMLA, look at the Civil Rights Act and the Pregnant Workers Fairness Act
Even though FMLA doesn't apply to employees of small businesses, birthing parents specifically may have some additional legal protections thanks to Title VII of the Civil Rights Act of 1964, which protects against sex discrimination, and the Pregnant Workers Fairness Act (PWFA).
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"Pregnancy discrimination is considered sex discrimination," Pillicher says. While Title VII doesn't specifically pertain to parental leave, it does mean that if an employer has offered medical leave to employees for other situations, then they have to provide the same benefits to you.[3]
The PWFA applies to employers with 15 or more employees. It provides rights to a "reasonable accommodation" for pregnancy and childbirth recovery, explains employment attorney Daphne Delvaux, owner of Delvaux Law.
That means you can request a leave of absence as an accommodation for recovering from childbirth or another medical condition related to pregnancy. Your employer has to grant it as long as it does not pose an undue burden (which is a high bar for the employer to meet). You can also ask for flexibility, telework, a shift of duties, and any other tools of support so you can both recover and also keep your job.
Study your state's rights and benefits
State laws can provide some additional protections. Thirteen states (California, Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island and Washington) and Washington D.C. have enacted mandatory paid family leave systems with their varying eligibility requirements; another nine states have voluntary systems.[4]
Enrolling in a state-level family leave program may net you a percentage of your earnings for a certain amount of time. But those who work at small businesses and don't qualify for FMLA may still lose their jobs if they take state-sponsored leave. That's because some of the states that passed paid family leave laws didn't include job protection in the legislation; all they did was establish a mandatory or voluntary insurance program.
For example, Oregon's paid leave law provides up to 12 weeks of paid leave and job protection as long as you've worked for your employer for at least 90 days. Meanwhile, California's paid family leave law provides up to eight weeks of paid leave, but does not require job protection for those eight weeks.
What this means: Depending on where you live, you may access a certain amount of paid leave through your state, but if you don't have FMLA or PWFA protections because you work for a very small employer, your employer can still limit the length of your leave (or even deny it). So figuring out the specifics of your state's paid family leave laws is an important first step.
Step 2: Negotiate your employer benefits
Next, you'll need to talk to your boss about taking time off — but do it smartly. "Most employers are not going to force you back to work right away after birth," says Daniel Kalish, managing partner at HKM Employment Attorneys, a national firm representing employees. But of course, it's not as simple as "just asking." Advocating for yourself can feel daunting, especially when you're asking for an extended leave.
Use your research to talk to your boss
Bring up the research you already did on your state and federal rights in your conversation. Maybe the FMLA doesn't apply, but you can ask about how the company handles medical leave, says Suzanne Bowling, corporate human resources director at G&A Partners, an HR consulting firm that works with small and medium-sized businesses.
Even if you're pretty sure the law isn't on your side, it can't hurt to ask for what you would be entitled to if you worked at a larger company. "Sometimes employers are confused (rightfully) about all the exemptions in the laws that they end up granting [leave] regardless," Delvaux says.
Present a plan that shows you're willing to work together
"Putting together a plan of anticipated leave dates and how your absence can be covered is an excellent way of showing your employer that you are willing to work with them on the leave," Bowling says. "Those who communicate early and offer solutions to cover their work are probably more likely to succeed."
Depending on your job, maybe you can get ahead on tasks before you go out on leave. Or perhaps you can suggest a part-time contractor to cover your most essential duties.
"Planning for your leave is really a "both/and" situation, where you and your employer team up to make sure things go as smoothly as possible," Delvaux says. "Actively participating in your own leave transition will not only minimize the risk of discrimination down the line, but put everyone's minds (including your own!) much more at ease."
There's also an opportunity here: "It allows you to showcase your value to the organization," Delvaux says." Pregnancy is a great time to remind your employer how essential you are."
Write everything down, and reiterate your rights if necessary
If you happen to work for a small employer in a state without additional job protection laws, there is not much you can do if they say no. "The reality is there are gaps in the protections," Kalish says.
But if you think you're experiencing pregnancy discrimination or being denied a leave you're entitled to under state law, "document what's happening. Then consider seeking legal advice if you think your rights are being violated," Vagins says.
That doesn't have to mean you need to immediately lawyer up. Kalish suggests posing it first as a question to your HR person or supervisor. "Something like 'Hey, I read somewhere that I'm legally entitled to it and was just wondering if that was the case?' If you ask it like a question, then it comes across much less threatening."
Step 3: Figure out your options for getting paid while you're out
Very few parents are lucky enough to have fully paid parental leave from their employers. If your employer is unwilling or unable to provide paid leave — but is willing to give you unpaid time off — you still have some options for funding your time off. These include:
Short-term disability insurance
Short-term disability insurance can pay out a portion of your income on a weekly basis when you're unable to work due to pregnancy complications or recovery from childbirth. For an uncomplicated delivery, a policy might cover somewhere between 50 to 70% of your income for six weeks following birth. It may offer more time if you have a C-section or experience complications.
Short-term disability policies are a common employer-provided benefit and five states (California, Rhode Island, New Jersey, New York, and Hawaii) have state-provided short-term disability programs. Private insurance (which must be bought a year before you're pregnant in many cases) is also an option if you're planning in advance.
State family leave programs
The state-run paid family leave programs mentioned above function similarly to short-term disability insurance, except they cover parental leave more broadly beyond pregnancy and childbirth. To find out the rules where you work, check with your state's Department of Labor, Bowling suggests.
Vacation and paid sick time
Changing diapers and pumping every few hours probably isn't the vacation you envisioned, but you can use paid vacation and sick days to pad out your leave on top of a state-sponsored program or a short-term disability policy. For example, let's say you have 10 days paid vacation from your employer, you could save those and add them on top of the six weeks of paid time you might qualify for through your short-term disability insurance.
Your registry
Instead of a diaper fund, add a parental leave fund to your registry. Even small-dollar donations to a leave fund can add up when you're taking unpaid time from work to bond with your baby. "This is the time to ask your community to support you in a real meaningful way," Delvaux says.
This seems really unfair and also needlessly complex. Is there anything we can do about it?
The U.S. is one of only six countries in the world without mandated paid family leave, but that can change.[5]
"Your rights as an employee should not depend on your zip code or whether you won the employer lottery," Vagins says.
Tell your elected representatives why paid family leave is important: Send them a message through the What to Expect Project (it's quick and easy — promise) and let them know why the U.S. needs a guaranteed federal paid family leave that covers every parent, regardless of where they work.
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