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FMLA Rights and How Working Women Can Build the Job They Want: Part 2

February 15th, 2016 Christopher Davis

Since 1999, the percentage of women in the American workforce has been steadily decreasing, and rests at just 69% today. In Part 1 of this blog, our firm discussed some of the causes behind this trend, and began a discussion of how American women can combat some of the forces that make it difficult for them to remain in the workplace. Here, in Part 2, we focus on the particular challenges working mothers face at work during pregnancy and the early stages of parenthood. Pregnancy, childbirth, the post-partum period, and early parental responsibilities can negatively impact a working mother’s health and ability to work, but given the right tools, women can secure the accommodations necessary for them to effectively remain in the workplace as new mothers.

According to the U.S. Census Bureau, there are over 43 million women of working age with children in the United States—and in 2013, 61.7% of all women who gave birth were members of the labor force. Unfortunately, most working women in the United States who plan to have children won’t be covered by the expansive maternity leave and caregiver accommodation policies that are available in many European counties. Women can, however, take full advantage of the policies they do have available to them by using them as starting points for a conversation with their employer about further accommodations for during and after their pregnancy. If you’re a working woman thinking of expanding your family, the caregiver protections you’re given under U.S. state and federal law might not be enough. Particularly if your job is demanding, you may require additional accommodations from your employer in order to make remaining in the workforce a viable option for you—and the only way to get them is to ask.

In this blog, we’ll cover three main areas involved in this process—learning about the accommodation policies available to you, beginning a conversation with your employer, and successfully managing an adjusted or reduced work schedule—with the end goal of helping all working mothers to effectively navigate their role in the workplace while acting as family caregivers.

Step One: Get Educated.

While men and women alike are faced with the difficulty of balancing family obligations with work commitments, the majority of the burden often falls on women, given the increased demands that are placed on them during and immediately after pregnancy. If you’re a working mother facing this challenging situation, your first step is to research the accommodations that are available to you during and after your pregnancy under state and federal law.

  • FMLA Rights

The Family and Medical Leave Act, or FMLA, is the United States’ only federal law designed to help protect working mothers’ rights. All women in the United States are protected under the FMLA, provided that they have worked at the same place of employment for at least 1,250 hours over the past 12 months and do not work for a private-sector company with fewer than 50 employees. Under the FMLA, women can take up to 12 weeks of unpaid, job-protected leave due to a pregnancy or a new addition to the family. There are other medical and family-related conditions that can qualify an employee for FMLA leave as well. For more information on qualifying conditions or other aspects of the FMLA, you can view our “FMLA FAQs” blog here.

  • State Rights

Aside from the FMLA, women can also look to state and local laws governing maternity leave and caregiver accommodations. Because the United States has fallen behind as European countries move to enact more comprehensive maternity leave laws, many states are taking the lead on expanding rights for working mothers. Some states, including New York and New Jersey, have enacted laws that guarantee certain benefits for working mothers, such as paid leave. In December 2015, New York mayor Bill de Blasio announced a new parental leave policy for New York City employees. Approximately 20,000 workers in New York are covered by the new policy, which guarantees six weeks of paid leave at 100% salary for new mothers and fathers, and up to 12 weeks total when combined with existing leave.

“Too many new parents face an impossible choice, taking care of their child or getting their paycheck,” de Blasio said. “This is a common-sense policy that will make for healthier and more financially stable working families, making it good for employees and employers.”

New York and New Jersey are also among the states that provide short-term disability accommodations to employees who are temporarily unable to work for any medical reason, including pregnancy. In other words, New York and New Jersey, unlike most states, recognize pregnancy as a temporarily disabling condition sufficient to qualify for disability insurance benefits. New York state law requires employers to provide up to 26 weeks of short-term disability insurance to these employees within a period of 52 consecutive weeks, which provides the employees with partial wage replacement—usually 50% of their wages—during the weeks they are unable to work.

While New York is not one of the states that requires employers to provide parental leave, some New York employers choose to offer extended leave or additional caregiver accommodations as a benefit to their employees. You can check with your place of employment to see whether any of these protections are available to you.

  • Anti-Discrimination Rights

One additional issue that working mothers may encounter is discrimination due to their maternity or caregiver status. At the beginning of 2016, New York City passed a new law that expands the protections of the NYC Human Rights Law to people with full-time care responsibilities for family members. Caregiver status is now included as a protected class under New York City law, alongside other protected categories like race, religion, national origin, and criminal history. Employers may not discriminate against employees on the basis that they belong to any of these protected classes. According to the NYC Human Rights Law, a caregiver is a person who “provides direct and ongoing care for a minor child or a care recipient,” a definition that broadly covers working mothers and fathers.

Federal law and many states, including New York, also prohibit a form of disability discrimination known as “associational discrimination,” which extends to working parents who are caring for a disabled child. The disability may be permanent, but the protection from discrimination also extends to workers caring for those who are temporarily “disabled,” e.g. incapacitated by a short-term illness like the flu. Thus, under New York law, working parents must be accommodated if they need time off to care for a permanently or temporarily disabled or ill child, including time needed to take children to doctors’ appointments during the workday. Other states or municipalities may extend additional anti-discrimination protections to parents caring for an incapacitated child.

Step Two: Discuss Accommodations with Your Employer.

Once you know what caregiver accommodations you’re entitled to under state and federal law, you can determine what other allowances you might need in order to continue working after your return from maternity leave. These might include shorter hours upon your return, the ability to telecommute or work from home, or an extra week of leave after your FMLA or employer-sanctioned leave ends.

  • Communicate with your employer.

Typically, it’s best to initiate a conversation with your employer soon after you first anticipate the need to take parental leave. The dialogue should be ongoing; don’t expect to discuss your maternity leave and its aftermath only once in a single conversation. Particularly if you feel that you’ll need further accommodations beyond what will be provided to you, be open to having a frank discussion with your employer. Discuss what women at your workplace have done in the past to re-integrate themselves into their positions after maternity leave. Remember that it’s in your employer’s best interest to give you the tools you need to remain an effective employee.

  • Know what you want.

If you plan to ask your boss for temporary or permanent caregiver accommodations upon your return from maternity leave, plan carefully for that important conversation. Don’t shy away from asking for what you want—remain firm, but also know where you’re willing to be flexible. Ask other women or former employees at your workplace about their experiences returning to work after parental leave. Were they able to secure fewer hours, or become part-time employees? Do they believe your employer would be open to you working a four-day workweek, or telecommuting? Determine what accommodations you think are reasonable, and stick to them. Have a plan in mind for how your new work schedule will look, and express it to your employer in detail—you may also wish to suggest a trial period so your employer can see whether your plan is feasible. How many hours will you work, and when? Will it be temporary or permanent? Back up your request with as much information as you can—your boss will thank you, and you will likely have a greater chance of securing the accommodations you want.

  • Brush up on your negotiation skills.

Even though it’s in your employer’s best interest to accommodate you when you ask for post-leave schedule adjustments—as long as your work quality doesn’t drop—some employers may be wary of adjustments, fearing that you’ll be less committed or will get less done. If your request for schedule flexibility is met with reluctance or resistance, you’ll need to draw on your negotiation skills to improve your chances of securing accommodations. Employers will appreciate a reminder of your worth to the company, in the form of past accomplishments, numbers, and statistics about your achievements. You may be able to use examples to argue effectively about how the accommodations you want will improve or ensure your productivity. Several of our firm’s past blogs, including “Know Your Worth: Tips and Tricks for Negotiating a Raise” and “Women in the Workplace: Pushing for Pay Equality” include some helpful tips on negotiation strategies.

Step Three: Remain Effective in Your New Capacity.

So, your accommodation negotiations were successful—you’re now working reduced hours, employed part-time in your position for the foreseeable future. What now?

  • Stay connected.

If you’re spending less physical time at your workplace, or are frequently in and out throughout the day, it’s important that you maintain a consistent connection to your employer, colleagues, clients, and anyone else you might need to communicate with to do your job effectively. Especially with young children at home, it’s tempting to check out of the workplace completely when you leave—and for some jobs, this undoubtedly is possible. But if your job is heavy on communication, you should make an effort to stay up-to-date via phone or email interactions when possible. Let your colleagues and/or clients know when you’re available to be reached outside of the office. Consistency in your communication can help make your transition a more seamless one.

  • Protect your work relationships.

You might be spending much more time out of the office, or perhaps your employer has excused you from meetings and other “lower-value” workplace activities in favor of other responsibilities that involve less facetime with your colleagues. Make a concerted effort not to let your workplace relationships fade, even though you’ll likely be busy and overwhelmed. Staying engaged with your workplace community is a good way to continually demonstrate your engagement with and dedication to your job.

  • Stay focused and flexible.

Just because you’ve been given caregiver accommodations doesn’t necessarily mean that you’re working any less hard—the work that you do get done might just be completed more efficiently. Being a working mother is still a balancing act, but hopefully, with your employer’s support, you can find a strategy that works best for both of you. Remain mindful of all of your responsibilities, and try not to be too rigid if your routine must be adjusted. Let your employer know when you need a break, but also emphasize that you’ll go the extra mile if need be. In the end, being a working mother is just that—a balancing act. But if you can navigate the road to becoming one, you’ll doubtless be able to work through the challenges that arise.