Fair Maternity Leave Is Not Too Much to Ask

A woman where I work recently told me an all too familiar story. Her pregnant cousin had informed her supervisor that she planned to take some time off after her baby was born. The supervisor had replied that she was entitled to 10 days’ sick pay. After that, there would be no pay and no guarantee she would get her job back, although the job would probably be there.

“Isn’t there some law that says a woman has a right to a maternity leave?” my acquaintance asked. Her reaction was typical. She was shocked when I told her there wasn’t.

A widely held belief that a working woman is entitled to a six-week, paid maternity leave with the right to reinstatement to her job is only a myth. There is no coherent national policy on the employment status of pregnant women. This, despite the fact that in 1987 one-half of the women with children under 12 months were in the labor force, up from less than one-third in 1976. Congress is considering legislation that touches on this issue but does not address it directly or adequately.

Since 1979 employers have been required by federal law to treat pregnant women the same way they treat “other disabled persons.” Employers typically place women at the time of childbirth on sick leave (be it paid or unpaid), but only if sick leave is already provided by the company. Any right to reinstatement depends on how the company treats all people returning from sick leave.

In years past, pregnant women may have been viewed as too delicate to work. Today, a woman who has a normal pregnancy and delivery is generally regarded as healthy. Yet the law requires comparison to non-pregnant, disabled persons--a comparison physicians find baffling. Moreover, it is not at all useful in designing a policy to contend with the consequences of taking time off to have a baby.

Under federal law, temporarily disabled persons have no rights to a leave of absence, reinstatement to their job, or entitlement to medical or disability insurance benefits. Pregnant women and newmothers, therefore, must look to state law as the source of any rights. At present, Only 16 states offer any guarantees, with perhaps California having the best. In a country where major employment rights are typically guaranteed by federal law, it is decidedly unusual to look to state legislatures as the source of a right the Congress is reluctant to grant.

Some working women may be under the impression that things will improve if the Parental and Medical Leave Act, which is expected to go to the House floor in early March, passes. The bill would require employers to provide up to 10 weeks of unpaid leave to both fathers and mothers, and would grant new mothers up to 15 weeks short-term disability leave upon medical certification. The attempt to grapple with the more difficult and longer-term problem of the child-rearing responsibilities of working parents is admirable. But it fails to address the problem of the pregnant working woman. She would still be forced to prove disability. Women whose companies offer sick leave have been fired for staying home for six weeks after childbirth. Courts have found this lawful because the healthy new mother could not prove she was unable to work. The new law would do little to improve this situation.

The bill also falls short of the child-rearing needs of working parents. What would new parents do with their 10-week-old when most day-care centers refuse to accept infants? If the leave is unpaid, how many parents, especially fathers, will be willing and able to forgo two months’ pay? Working parents are not asking to stay home; they want affordable, high-quality care for children while they are at work.

Congress should enact a law that guarantees women a paid, six-week leave, regardless of actual disability at the time of childbirth. Short-term disability leave up to 15 weeks should be guaranteed when medically necessary. The virtue of a six-week leave lies in its simplicity. Employers and women would know in advance the exact amount of leave, thus permitting more accurate planning in arranging for cover at work and infant care at home. Although any length of time would be arbitrary, most obstetricians advise new mothers who have a normal delivery to stay home for six weeks.

Businesses should recognize their investment in the female labor force and support a childbirth bill. With an impending labor shortage resulting from the low birth rates of the past two decades, businesses cannot afford to fritter away this investment. An attractive maternity-leave policy is already offered by many progressive employers. Their experiences demonstrate that the short-term cost bears long-term rewards.

Only women can bear children. This is abiological fact. Women may be equal to men, but when it comes to childbirth they are not identical. Those who assert that women are being shown favoritism if men are not given an equal amount of time off to be with their new baby ignore the crucial distinction between childbearing and child-rearing. Working women who want to bear children are merely asking that they be able to do so without being penalized on the job. It is not much to want.