Navigating the Complex Web of Pregnancy and Parental Leave Laws and Programs

Jai Hooker@Work

Navigating the Complex Web of Pregnancy and Parental Leave Laws and Programs

By Marjory Robertson, Esq., AVP and Senior Counsel, Sun Life U.S.

Employers and employees face a daunting task when it comes to planning for leave related to pregnancy, childbirth, and bonding with a new child. Many disability laws and policies may apply that provide paid leave, unpaid leave, and/or paid benefits for disability during pregnancy, disability to recover from childbirth, and/or bonding that vary by state and, in some cases, by city and county.

Federal Laws

Since 1993, the federal Family and Medical Leave Act (FMLA) has guaranteed both parents of a newborn child essentially equal time off after the child’s birth. Under the FMLA, each eligible employee is provided with up to 12 weeks of job-protected unpaid leave per benefit year for an employee’s serious health condition, to bond with a new child, or to care for a child with a serious health condition. Women who experience a so-called “routine” pregnancy typically take leave to recover from childbirth and can then take the remainder of their 12 weeks to bond with their new child(ren).

Most medical professionals agree that the standard period of time needed to recover from a routine childbirth (i.e., one without complications) is six weeks for a vaginal birth and eight weeks for a Caesarean delivery, which results in a split of six to eight weeks for the employee’s own serious health condition and six to four weeks for bonding. Eligible nonbirth parents can take up to 12 weeks to bond with their new children.

Under the Americans with Disabilities Act (ADA), some birth mothers may be entitled to take even more unpaid leave for reasons related to pregnancy or childbirth. While a routine pregnancy is not considered a disability under the ADA, complications before or after childbirth may qualify as a disabling condition, and case law has clearly established that job-protected leave can be a reasonable accommodation under the ADA.

State Laws

A number of states (listed below) have pregnancy disability leave laws that guarantee employees a certain amount of job-protected unpaid leave per year for conditions related to pregnancy or recovery from childbirth. California is perhaps the most generous, offering up to four months (17-1/3 weeks) of job-protected, unpaid leave for conditions related to pregnancy or childbirth under the California Pregnancy Disability leave (PDL) law.

Some states also have versions of a family and medical leave act that they are amending to expand the number of employees who are eligible for the benefits. California is, again, the most striking example with its California Family Rights Act (CFRA), which provides up to 12 weeks of job-protected, unpaid leave to eligible employees to bond with a new child, among other reasons. As a result of amendments to the law that became effective Jan. 1, 2021, this leave is now available to all eligible employees of an employer with five or more employees in California.

It’s also worth noting that in California, CFRA excludes pregnancy and makes clear that leave under PDL is to run prior to leave taken for bonding with a new child. This means a new birth parent in California can take up to 29 and 1/3 weeks of job-protected leave for reasons related to pregnancy, recovery from childbirth, and bonding associated with a routine pregnancy.

California also has the Fair Employment and Housing Act, a law that is equivalent to the ADA, and a separate law that requires reasonable accommodations for pregnancy- or childbirth-related reasons. Therefore, in California, an employee who exhausts or is not eligible for FMLA, PDL, or CFRA may still be entitled to leave and/or accommodations because of a pregnancy or recovery from childbirth.

Here is a quick snapshot of various leave laws and a few public reference tools for statutory references, including the National Conference of State Legislators, A Better Balance, and the National Partnership for Women & Families.

  • The following jurisdictions have pregnancy disability leave laws: California, Hawaii, Iowa, Kansas, Louisiana, New Hampshire, and Washington.
  • The following jurisdictions have a version of a family and medical leave law that provides leave for one or more of the reasons covered by the federal FMLA (and possibly other reasons), though leave reasons and eligibility may be significantly different from the federal FMLA: California, Colorado, Connecticut, Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Tennessee, and Wisconsin; Washington, D.C.; Miami-Dade County, Fla.; and Guam.
  • The following jurisdictions have pregnancy accommodation laws: Arkansas, California, Colorado, Hawaii, Illinois, Kentucky, Louisiana, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island (as well as Providence and Central Falls); South Carolina, Tennessee, Utah, Vermont, Virginia, and West Virginia; Washington, D.C.; and New York City and Philadelphia. Indiana has a pregnancy accommodation law, but it does not mandate accommodations.

Many states have adopted paid leave and/or statutory disability laws that provide paid leave benefits for reasons related to pregnancy, recovery from childbirth, and bonding with a new child.1 Some of these laws provide job protection to some or all employees who take advantage of the benefits:

  • The following jurisdictions have active paid leave and/or statutory disability laws: California, Connecticut, Hawaii, Massachusetts, New Jersey, New York, Rhode Island, and Washington; and Washington, D.C.
  • The following states have adopted these types of laws but benefits have not yet begun: Colorado (benefits begin January 2024), Delaware (benefits begin January 2026), Maryland (benefits begin January 2025), and Oregon (benefits begin September 2023).

Which Laws Run Concurrently?

The federal FMLA is always applicable if employees are eligible, the leave reason is covered, and employees have allotment available. Neither the employee nor the employer can prevent the FMLA from running in these circumstances, and, conversely, an employer cannot treat the leave taken under the FMLA in terms of calculating the employee’s available allotment of FMLA leave if these three circumstances are not met.

Typically, state leave laws run concurrently with federal FMLA if the employee is eligible for both. However, there are a number of circumstances in which an employee may be eligible for leave under a state FMLA or paid family and medical leave (PFML) law but not for leave under the federal FMLA law. This may cause them to have federal FMLA leave allotment available for FMLA-covered reasons even after they exhaust their state leave allotment. The most common situation is when an employee who may be eligible for a state law but not for the FMLA because eligibility requirements for state and local laws are usually more generous for employees than the federal FMLA. For example, all employees in California are eligible for job-protected PDL regardless of employer size or the length of time they have been employed.

Another factor that may affect whether state or local leave runs concurrently with federal FMLA leave is whether an employer permits intermittent bonding under the FMLA.   Under the FMLA and a number of state FMLA or PFML laws, the employer has the right to deny intermittent leave for bonding and require that it be taken in one continuous block of time.  However, in California, the District of Columbia, Hawaii, New Jersey, the New York PFL, Wisconsin, and the Washington PFML, employees do not have to obtain employer permission to take intermittent leave for bonding.  Therefore, if you prohibit intermittent bonding under the federal FMLA, the employee may, nonetheless be legally entitled to take intermittent bonding under these state laws.  And you could be in the unfortunate position with an employee’s FMLA allotment not being decremented given your prohibition on intermittent FMLA leave for bonding. Employers can address this by notifying employees that federal FMLA intermittent bonding leave will not be provided except when an applicable state or local law permits it.

Effects on Your Paid Parental Leave Program

Historically, many employers only offered paid bonding leave to the birth mother and — more broadly — to offer paid maternity leave policies that provided benefits only to new birth mothers. These leaves did not typically distinguish between time needed to recover from childbirth and the time to bond. To the extent that employers have maternity leave policies (paid or unpaid) today, they should consider redesigning these policies as they could potentially be discriminatory based on gender.

Some employers adopted parental leave policies that provide more leave to a primary caregiver than to a nonprimary caregiver. These policies have been challenged for discriminating on the basis of gender when employers assume that the mother is the primary caregiver or otherwise resisted treating a father as a primary caregiver. Three high-profile lawsuits have involved gender discrimination claims by fathers when employers had primary caregiver policies:

  • A major financial services company paid $5 million to settle a lawsuit involving more leave being given to a primary caregiver than a nonprimary caregiver on the grounds that it was implemented in a manner that had a disparate impact on men.1
  • A prominent cosmetics company agreed to pay $1.1 million to settle a similar claim. 2
  • A lawsuit is pending against a large law firm that involves similar allegations.3

Employers that want to eliminate risk should provide paid (or unpaid) parental leave benefits for bonding that are the same for all employees regardless of gender, status as birth parent, and primary caregiver status. If the employer offers short-term disability benefits, birth mothers should be permitted to use their paid parental leave benefit at the end of their disability period for recovery from childbirth. Then birth mothers will be out six to eight weeks longer than nonbirth parents in most cases. This approach is most consistent with the legal and statutory trends.

The variations can be overwhelming.  Hopefully, this article has helped identify areas where laws differ or, conversely, overlap.  There are also scenarios in which employers can customize their own leave policies in view of these various laws.  Designing leave programs for employees will continue to be one of the most challenging benefits choices facing employers for years to come.


  1. A Dad Wins Fight to Increase Parental Leave for Men at JPMorgan Chase. May 30, 2019. Retrieved from
  2. Estée Lauder Companies to Pay $1.1 Million to Settle EEOC Class Sex Discrimination Lawsuit. Retrieved from
  3. Justia US Law. Modified Sept. 4, 2020. SAVIGNAC et al v. JONES DAY et al, No. 1:2019cv02443- Document 32 (D.D.C. 2020). Retrieved from