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Varying Maternity Leave Policies

Recently, our firm was asked if it were permissible for a company to have separate maternity policies for a corporate office from that of a store location.  The concern was of course that a claim of discrimination would be made if different policies were used, and it was right for the question to be asked.  However, what may be surprising is that there is no requirement that employees at different company locations all be offered the same benefits. In fact, it is common for employees in a corporate office to receive different employment packages than those at other locations, such as the company’s retail store or restaurant. In fact, an employer does not have to have the same policies for all employees in the same location in many instances. The key is that a policy not have an adverse impact on any protected groups or result in unintentional discrimination.

Maternity leave can involve a combination of sick leave, personal days, vacation days, short-term disability, and unpaid leave time. Thus, exactly how a maternity leave will be structured for any one employee will likely vary.  It is important to note that if your policy allows women to take paid leave beyond what’s considered medically necessary after childbirth (for instances, to arrange for childcare or bond with the child), then you should also allow male employees to take paternity leave for similar purposes. Not allowing a male to take leave under the same terms and conditions as females, if the leave is not related a pregnancy-related disability, can be considered sex discrimination.  So, realize that in some cases your maternity leave may also require a mirroring paternity leave.

The Family and Medical Leave Act (“FMLA”) should also always be considered. If FMLA eligible, a new parent (including foster and adoptive) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of a new child.

For some helpful tips on what to do when an employee approaches you about maternity leave, visit us again on Wednesday.

Luke Wingfield







Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

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