Having a Baby: Frequently Asked Questions
The following is excerpted from The Court TV Cradle-to-Grave Legal Survival Guide, an easy-to-read, in-depth explanation of the law as it affects all aspects of daily life. You can order the book, published by Little, Brown and Company, from our online store. It also is available in local bookstores, or you can call Little, Brown directly at (800) 333-3476.
WHAT KIND OF MATERNITY LEAVE ARE WOMEN ENTITLED TO?
It varies. No laws require employers to offer paid maternity leave, but many do. In addition, pregnancy, childbirth, and related medical conditions are technically considered to be disabilities, so if your employer offers paid disability leave you are ent itled to take that leave when you are pregnant or when you give birth.Unpaid leave, however, is a different matter. Most employers have to offer unpaid leave under the Family and Medical Leave Act of 1993. Women who are eligible to take leave under this law are entitled to take up to 12 weeks off.
In addition, some states require that a woman be given up to four months of unpaid leave after the birth of a child.
Often a woman who plans to take a disability leave for pregnancy, childbirth, or related medical conditions must give her employer reasonable notice of the date she will leave and the date she will return. And, under the Family Leave Act, a woman who adop ts a baby is also entitled to take up to twelve weeks of unpaid leave.
WHAT ABOUT NEW FATHERS? ARE THEY ENTITLED TO PATERNITY LEAVE?
Yes, under the Family and Medical Leave Act, new fathers can take up to 12 weeks of unpaid leave. Also, some employers now offer new fathers paid paternity leave.WHAT IS FAMILY LEAVE?
The Family and Medical Leave Act of 1993 allows employees to take up to 12 work weeks of unpaid leave during a one-year period for:
- the birth of a child
- the adoption of a child
- placement of a child with the employee for foster care
- care for a spouse, child or parent with a serious health condition
- care of a serious health condition that makes the employee unable to work
WHO HAS TO OFFER IT?
Family leave must be offered by most public agencies and by any business that has employed 50 workers or more for 20 weeks of the current or preceding calendar year.
WHO GETS IT?
To qualify for leave, a worker must have been employed for at least 12 months and worked at least 1250 hours.
WHAT JOB GUARANTEES ARE THERE?
Most employees who take leave are entitled to return to their same position or to an equivalent position with the same benefits and pay. Seniority and other benefits do not accrue during the leave. In some cases, a company's highest paid employees may be denied their former jobs if it would be an undue hardship for the employer to make do without this person. These tend to be jobs that involve a lot of responsibility, say a chief financial officer or head of human resources.
CAN AN EMPLOYER FORCE A WOMAN TO CHANGE JOBS BECAUSE SHE'S PREGNANT?
No. A woman can't be penalized for being pregnant. Expectant employees (and new mothers) are protected by the federal Pregnancy Discrimination Act, which requires that employers treat pregnant workers the same as other employees. Even if a woman works in an industry where she might come into contact with chemicals or be required to exert herself physically in ways that could be hazardous to her pregnancy, an employer would have to show considerable evidence that she is at risk before she could be forced to move from her job.
If a woman's ability to do her job is truly diminished by her pregnancy, then her employer may be able to move her. For example, if a woman works in a construction job where she is required to do a lot of heavy lifting, but will be unable to do so during the later stages of preganancy, the employer may be able to move her--though every effort must be made to find a comparable job for her with comparable pay.
That doesn't mean though that the employer has to create a new job for her. If, for instance, a woman works as an elevator mechanic and her doctor tells her she can't work past a certain point in her pregnancy, her boss should try to move her to another p osition in the company with comparable pay. That may be difficult though, since she earns $40 an hour and the only other positions in the company are for a secretary and a bookeeper. She may, however, be entitled to collect disability pay for the time she is unable to work before her baby is born.
DOES AN EMPLOYER HAVE TO GUARANTEE A WOMAN'S JOB WHEN SHE GOES ON MATERNITY LEAVE?
Yes, for the most part. Employees who return from maternity leave are entitled to return to their previous position or to an equivalent position with equivalent benefits, pay, and conditions of employment. Fathers who take time off to care for a newborn u nder the Family Leave Act are entitled to the same benefits.
If you think you've been discriminated against because of your pregnancy you can file a complaint with the EEOC.
WHAT KIND OF MEDICAL CARE, IF ANY, ARE PARENTS REQUIRED TO PROVIDE THEIR CHILDREN?
In general, parents are legally responsible for the "reasonable necessary" medical expenses of their children. For the most part, a parent's consent to medical treatment is required, although many states allow for exceptions in the case of emergencies, pr egnancies, venereal disease, or alcoholism. Parents are required to consent for two reasons:
- They have the right, as well as the obligation, to determine what is best for their children.
- They are going to be responsible for paying the bill.
WHAT ABOUT IMMUNIZATIONS? ARE THEY REQUIRED?
This is an area in which the government can dictate a parental medical decision. Because of the dangers to the population at large from a child with an infectious disease such as smallpox or measles, most states require children to be vaccinated ag ainst certain diseases before they can attend school.
If your child does not have the shots, he or she cannot attend school, and if he or she does not attend school, you are in violation of compulsory schooling laws. However, some staes do allow a child to forgo the immunization for religious reasons or if t he vaccination would be medically dangerous or harmful to the child.
If you object to immunizations, you should find out the rules in your state. Your local school board can probably advise you whether your objection would be accepted and honored.
DO ALL DAY-CARE CENTERS HAVE TO BE LICENSED?
The requirements vary from state to state, but most states require a day-care center that serves more than a certain number of children to be licensed, although centers that are operated by a church are usually exempt from licensing requirements. In reality, licensing generally just assures that a center has complied with certain minimum requirements (like having a fire extinguisher on the premises) that were set forth by the state; it does not necessarily mean that the center is particularly good or even better than average. All that a license will tell you is that the day-care center has passed some sort of inspection procedure.
Of course, because parents have the right to determine their child's care, many opt to sent their kids to informal programs that are not licensed.
DOES EVERYONE HAVE TO HAVE A BIRTH CERTIFICATE?
Yes, since many things in life, such as obtaining a passport, getting a driver's license, or registering for school may require a person to have one. The health officials you deal with at the time you give birth will provide you with the forms you need to obtain a birth certificate. Otherwise, you can obtain the necessary forms from the appropriate government office in your municipality, sometimes called the registrar of vital statistics.
SHOULD A NEW BABY GET A SOCIAL SECURITY NUMBER?
Yes. A Social Security number has become one of the most important means of identifying your child. Although there is no requirement to apply, you will be unable to claim a child over age one as a tax exemption on your income taxes if you don't. (You can note that you have "Applied For" a number on your return and claim the exemption, but you must then indeed apply for, and receive, the number.) You can apply for a Social Security number by contacting the Social Security Administration in your area.
CAN PARENTS KEEP CHANGING THEIR BABY'S NAME?
Most states have a period of time within which the child must be named on the birth certificate. You can contact your local registrar of vital statistics to find out the specifics that apply in your area. Once the child is named, the birth certificate can be amended at a later date, but you will probably have to go through some bureaucratic procedures and pay fees before you can do so. You should bear in mind that, regardless of the name that is on one's birth certificate, every individual has a right to use any first or last name so long as it is not done for the purpose of deceiving creditors, committing fraud or avoiding criminal prosecution.
Still, if you want to avoid problems and lots of questions like "Why is your name different from that on your birth certificate?", you may want to make your name change official. You can change your name legally upon reaching adulthood, which in most s tates is age 18.
DOES A BABY HAVE TO BE GIVEN THE FATHER'S LAST NAME?
Most states have laws that govern the naming of a child. Traditionally, a man's wife and children were required to have the same last name as he had. The modern trend is to permit the parents to give the child whatever name they choose, whether it is the name of the father, the mother or some combination of the two, such as a hyphenated name. You can find out what the law is in your state by asking the registrar of vital statistics when you fill out the birth certificate.
CAN A WOMAN GIVE HER BABY THE FATHER'S LAST NAME IF SHE'S NOT MARRIED TO HIM?
Probably. Traditionally, the father's name was not given to an illegitimate child, because that was considered to be a stigma to the father as well as to the child. The world is changing, however, and statutes have been enacted in many states that give a parent the right to give a child any last name, be it the mother's, the father's, or something totally different.
