Maternity/Paternity Leave. Is It OK To Ask?

Of importance to several young physicians and providers joining the workforce today is the availability of paid maternity and paternity leave. Often, they are hesitant to ask about this while interviewing for jobs. Many employers provide maternity/paternity benefits, but they vary depending upon various factors. Other employers, particularly smaller practices, do not. In situations where this benefit is not supported by an established policy, e.g. in a private practice, it should be discussed and addressed in writing, preferably in the final employment contract.

Legally speaking, there is currently no federal law that requires employers to provide paid maternity or paternity leave to employees. While some states have legislated paid leave, most have not. Illinois is one such state that does not require employers to provide maternity or paternity leave, paid or unpaid.

However, employees may avail themselves of the federal Family and Medical Leave Act (FMLA) to take time before and after the birth or adoption of a child. Eligible employees may request FMLA leave during the 12 months following the birth, adoption or placement of a child for foster care in order to bond with their new child. Employees may also avail themselves of the FMLA to take time for pre-natal care or for absences required before an actual adoption or placement of a child for the adoption or foster care. Under the FMLA employees are entitled to take a maximum of 12 workweeks of leave in a 12-month period and must have worked 1250 hours in the 12-month period before the leave is to start to be eligible. The FMLA does not provide that leave for any of the above be paid for by the employer, however.

In addition, under the federal Pregnancy Discrimination Act (PDA), an employer that allows temporarily disabled employees to take disability leave or leave without pay must allow an employee who is temporarily disabled due to pregnancy to do the same. Employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave. As with the FMLA, however, the employer is not required to provide disability leave with pay to a pregnant employee unless the employer’s disability policy provides a paid disability benefit. The PDA does not cover disability leave after the birth of the child although the employee may be eligible for disability leave under the employer’s policy if the employee is temporarily disabled as the result of the birth.

Employers should avoid asking about a prospective employee’s interest in maternity leave as that could be interpreted as an inquiry about the employee’s plan to get pregnant and, therefore, violate Title VII of the Civil Rights Act. Likewise, asking a male prospective employee about an interest in paternity leave could be considered an inquiry about his plans on availing himself of the FMLA which he has a right to do.

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