Maternity leave in the US: what the law actually guarantees

Leave and pay are separate questions here, and one has no federal answer

In most of the English-speaking world, maternity leave and maternity pay are two entitlements that arrive together. In the United States they come apart completely. There is no federal paid maternity leave. What federal law gives you is unpaid time off with your job and your health insurance protected, and only if you clear three separate hurdles. Whether you are paid at all is decided by your state, your employer's own policy, or a disability insurance plan. Our US maternity pay guide covers the money; this page covers the time and the job protection.

The Family and Medical Leave Act

The Department of Labor describes the FMLA as entitling eligible employees of covered employers to unpaid, job-protected leave for qualifying reasons, while requiring the employer to continue group health benefits on the same terms as if you had not taken leave. For a new baby, that is up to 12 workweeks of leave in a 12-month period, available for the birth of a child and to care for the newborn within one year of birth.

Twelve workweeks is the ceiling for all qualifying FMLA reasons combined in that period, not twelve weeks of maternity leave on top of anything else.

Test one: is your employer covered?

The FMLA applies to private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current or the previous calendar year. Public agencies, including federal, state and local government employers, are covered regardless of headcount, as are local educational agencies and public and private elementary and secondary schools.

Test two: are you an eligible employee?

You must have worked for a covered employer for at least 12 months, and have at least 1,250 hours of service with that employer during the 12 months before your leave starts. The 12 months do not have to be consecutive. The 1,250 hours is roughly 24 hours a week averaged across the year, which quietly excludes a lot of part-time workers.

Test three: the 75-mile rule

This is the one that catches people at big companies. You must work at a location where the employer has at least 50 employees within 75 miles. A national chain with 40,000 staff can have a branch of nine people two hours from anywhere else it operates, and nobody at that branch is FMLA-eligible.

Airline flight crew have their own hours-of-service rules, and time you would have worked but for military service counts toward eligibility under USERRA.

How the 12 weeks can be taken

For your own serious health condition, FMLA leave can be taken intermittently or on a reduced schedule when medically necessary. For bonding with a newborn it cannot, unless your employer agrees to the arrangement. So a phased return after birth is possible, but it is negotiated rather than guaranteed.

Only the leave you actually take counts against your entitlement, and when you take less than a full workweek it is counted as a proportion of your actual workweek.

What protects you if the FMLA does not

The Pregnant Workers Fairness Act, enforced by the EEOC, requires employers with 15 or more employees to provide reasonable accommodation for known limitations arising out of pregnancy, childbirth or related medical conditions, unless doing so is an undue hardship. The EEOC lists leave to recover from childbirth as a possible reasonable accommodation. That is a lower headcount threshold than the FMLA's 50, and it can be a route to time off for people the FMLA never reaches. The PWFA took effect on 27 June 2023 and the EEOC's final regulation on 18 June 2024.

The health insurance clause is the quiet win

The part of the FMLA that matters most financially is not the leave, it is the benefits continuation. Your employer must maintain your group health coverage during FMLA leave on the same terms and conditions as if you had kept working. In a system where a birth is billed against a deductible and an out-of-pocket maximum, losing coverage in the month you deliver would be catastrophic, and this is the clause that prevents it. You still owe your usual share of the premium, so arrange with payroll how you will pay it while you have no paycheque.

It is worth checking your plan's deductible and out-of-pocket maximum before you go on leave, because both reset at the start of a plan year. A baby due in early January and a baby due in late December can produce very different bills on identical plans, purely because of where the delivery falls relative to the reset.

State law is where paid leave lives

The Department of Labor's own advice is to check with your state labor department to see whether you have additional or greater protections under state law, and that is not a formality. A number of states run paid family and medical leave insurance programs, with their own contribution rules, waiting periods, wage replacement rates and duration, and several more have job-protection laws that reach smaller employers than the FMLA does. Those programs differ enough from one another that summarising them as a single number would be misleading, and this page will not do it. Look up your own state's program by name and read its current benefit year rules, because the wage caps in these schemes are usually reset every year.

What to do, and in what order

Count backwards: confirm you will have 12 months of service and 1,250 hours logged before your leave starts. Ask HR, in writing, to confirm whether your worksite meets the 50-employees-within-75-miles test. Ask what the employer's own paid parental leave policy is, separately from FMLA. Check your state's paid family leave program and its claim deadline, which is often much shorter than you expect. Then ask about short-term disability, which is how a lot of US birth recovery is actually paid for.