Maternity Leave ≠ Sitting on Your A** Part II

By Lindsey A. White - Shawe Rosenthal LLP

February 2, 2023

As a follow up to Fiona Ong’s blog post detailing the highly disturbing (but sadly not surprising) treatment[1] of an associate who interviewed for and accepted a new position while on parental leave, this blog post focuses on how employers can best support their employees who have taken parental leave—both those who have given birth and those who take caregiving leave and are adjusting to new responsibilities as a parent. As an employment lawyer and mom who returned to full-time work after having three children, here are some tips to support your new parents in the workplace.

•  Provide paid parental leave if possible. Although there is no federal mandate for paid parental leave (the Family and Medical Leave Act and state analogs are, of course, just job-protected unpaid leave), paid leave mandates are an emerging trend in multiple states. Most employers have short term disability for employees who have given birth, which is helpful for those employees. It is important to remember that giving birth is a physically demanding event that requires rest and recuperation. This is why the standard recovery time following childbirth is six to eight weeks, depending on the type of birth. However, offering at least a few weeks of paid parental leave for bonding is increasingly industry standard in many fields and, I predict, will become mandated under state law in most states in the next 5-10 years (mostly through state-run paid family and medical leave insurance programs). Offering paid parental leave also helps normalize taking leave and reduces the potential negative impact of female employees taking leave.

•  Speaking of the state paid family and medical leave insurance programs and STD – these typically provide only a percentage (usually 66%) of an employee’s pay. Consider offering pay to cover the difference.

•  And speaking of the FMLA, it provides that leave to care for a new child must be taken in a single block, unless the employer agrees otherwise. So employers, think about agreeing otherwise – allow employees to take reduced schedule or intermittent leave in order both to ease back into work (see the next bullet point) and provide baby care for a longer period of time.

•  Provide an on-ramp return to work program. As a new parent is returning to work, it is overwhelming getting a newborn, bottles of breast milk or formula, extra clothes, etc. to day care and get yourself presentable. This is especially true of nursing mothers, who have to navigate pumping schedules. Being able to return to work for 4-6 hours in the first few weeks, rather than full-time, is incredibly beneficial. One of my children refused to take a bottle, so for the first few weeks I had to leave work and go to day care to nurse. It was incredibly stressful to arrive at day care to a screaming baby. I am so grateful that I had a supportive employer that allowed me that flexibility for what is a blip in the span of a career.

•  For nursing mothers:

- Offer a program such as Milk Stork if your nursing mothers are traveling for work. This service will collect and safely transport breast milk back, avoiding the hassle of storing the milk at the right temperature and getting it through security.

- Provide an individual mini-fridge in the employee’s office or workspace to store pumped milk.

- If the employee does not have a private office, create a comfortable, private area that can be used for pumping. (Note: this is legally required by the Department of Labor and some states’ laws; a bathroom is not an appropriate place to express milk, but going above and beyond to make it extra nice will be very welcomed).

- Similarly, under federal law and some states’ laws, employees must be provided with appropriate breaks to express milk for the first year of the infant’s life.

Finally, having a baby is a major life event that happens only a few times for most people. The length of a career is very long in comparison. Your employees will always remember how they were treated during this special (and stressful!) time in their lives, and going above and beyond what is legally required will be rewarded in spades.

[1] While in law school, I had a male classmate express his dismay that my female classmates and I were receiving so much interest from big law firms during on-campus recruiting, as we would just have babies and leave the workforce.

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