Nearly half of all working women in America have no FMLA protection. For most of the last thirty years that meant one thing: no guaranteed right to take maternity leave when their baby was born. Until June 2023, when that changed.
The Myth Most Women Believe
The Family and Medical Leave Act, the law most women think of when they think “maternity leave,” covers only 56 percent of the workforce. And because women are more likely than men to work for smaller employers and more likely to have a baby before hitting their one-year anniversary on the job, they’re statistically less likely than men to qualify. The very women who need maternity leave most are the ones the FMLA was least designed to reach.
The Two Requirements That Leave Millions Out
The law has two basic requirements that knock out millions of women before they even get started. Your employer must have at least 50 employees. And you need to have worked there for a full 12 months before your due date. Miss either one and the FMLA’s got nothing for you.
For years, that felt like the end of the conversation. I heard it from HR directors. I heard it from the company’s defense lawyers. I even heard it from well-meaning colleagues who should’ve known better. No FMLA, no leave. Sorry.
The Law That Changed Everything
That was always wrong. And since June 2023 it’s been explicitly, unambiguously, federally wrong.
The Pregnant Workers Fairness Act changed the equation entirely. It doesn’t set a specific number of weeks for maternity leave, but it does require covered employers to provide reasonable accommodations for childbirth and recovery. And here’s where it gets significantly better than the FMLA in two ways most women don’t know about:
The PWFA covers employers with as few as 15 employees, and there’s no waiting period.
Day one on the job you’re protected. You don’t have to earn this right by surviving a full year first.
Your Doctor Is Your Ally
Here’s where your obstetrician becomes your most powerful ally. When your doctor says you need eight weeks to recover from a vaginal delivery, or twelve weeks from a C-section, that medical determination is your accommodation request. Your employer can’t simply ignore it. They can’t tell you that you’ve only got four days of accrued PTO and wish you luck. They’re legally required to engage with you in a good-faith interactive process, to analyze whether that accommodation creates an undue hardship, and to respond accordingly. Retaliation for making the request is itself a federal violation.
You may not have known that. Your HR department may not have known it either. But ignorance of the law isn’t a defense, and it’s certainly not your problem to solve on their behalf.
The floor exists. You just have to know where to stand.
A law you don’t know about is a law you can’t use. And a right you don’t raise is a right you don’t have.
Jack Tuckner Tuckner, Sipser, Weinstock & Sipser, LLP
Women’s Rights in the Workplace