Posted by Tamara
An employee works for a small business in Illinois and will soon be taking off time to have a baby. She submitted a request for FMLA leave, but her employer didn’t grant it. Is that legal?
The answer depends on several conditions.
First, there is no federal law that requires Illinois small businesses to provide paid or unpaid maternity leave for their employees.
Second, the federal FMLA (Family and Medical Leave Act) does provide up to 12 weeks of unpaid, job-protected leave for a variety of reasons, including pregnancy, childbirth and to care for a newborn. FMLA applies, however, only to employers with 50 or more employees within 75 miles. In addition, employees have to meet eligibility requirements. They must have worked for the company for 12 months, putting in at least 1,250 hours (excluding vacation, sick and any other paid time off from work.)
If the small business in the question has fewer than 50 employees, it does not fall under FMLA coverage, and is not required to grant maternity leave. The decision whether to offer this benefit to employees is up to each Illinois small business.
Third, if the small business grants leave for serious medical conditions, such as cancer, heart attack or stroke, then it must provide leave for maternity reasons. The relevant law is the federal Pregnancy Discrimination Act (PDA). Under this law the usual disability period after a normal delivery is considered to by 4 to 6 weeks, but can be 8 weeks or more.
The PDA applies to employers with 15 or more workers.
For example, Joe owns Joe’s Sandwich Shop. He provides up to 4 weeks of unpaid medical leave for employees for various scenarios. He doesn’t pay the employees while they’re on leave, but he doesn’t fire them for excessive absences, either. As a result, PDA mandates that Joe offer the same benefit to women for childbirth or pregnancy disability.
If the small business doesn’t provide leave for any medical condition, then the employee could be fired for taking too much time from work for childbirth or pregnancy complications. Several states have family leave laws that apply to smaller companies, but Illinois does not.
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