Explain how maternity, FMLA leave overlap

Many employers have maternity leave policies that provide a period of paid time off following birth or adoption. That’s fine. But if you intend for paid maternity leave to run concurrently with federal FMLA leave, be sure you spell that out.

It is especially important for your handbook to clarify how concurrent leave works. Only mentioning the paid leave benefit may mean workers are entitled to that plus an additional 12 unpaid weeks of unpaid FMLA leave once they have used up the maternity benefit.

Recent case: Bhavani worked as a technical analyst. Her employer had an employee handbook that included a section describing maternity leave. It stated, “Maternity leave will be treated in the same manner as any other disability leave. … At present, all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.”

In addition, the handbook had an FMLA section, which outlined eligibility. However, nowhere in either section did the handbook specify that FMLA leave would run concurrently with maternity leave or that the additional unpaid weeks of leave would be considered FMLA leave.

Bhavani gave birth and went on maternity leave. After 12 weeks, she notified HR she planned on taking 12 weeks of unpaid FMLA leave. She was then informed that she needed to return to work and wasn’t eligible for any more time off. She was terminated a few weeks later when she had not come to work.

She sued, alleging FMLA violations.

The court said her case could go to trial because the handbook didn’t state that the two forms of leave ran concurrently. (Rengan v. FX Direct, SD NY, 2017)