by Robin M. Lalley and Russ A. Brinson, Attorneys, Sodoma Law

Picture this: you’re expecting a baby and couldn’t be happier! Checking off the list of things to do to prepare for your upcoming bundle of joy includes picking a name, decorating the nursery and registering for lots of cute baby gifts. But what about the more practical issue of being a working parent? You have a job you love and probably plan to return to following your maternity or paternity leave. So what special considerations are there for an LGBTQ couple when it comes to maternity and paternity leave, and how can you work with your employer to meet their needs and those of your growing family?

Not all leave policies are the same.

Each employer is different, and if you work for a small or new business, they may not even have a policy, or have had an employee have a baby or adopt before. If it’s a bigger company, the maternity or paternity policy is probably well-known, or there may be an employee handbook or a Human Resources department that can quickly answer this question. Otherwise, you need to figure out when (and how) you are going to approach your employer with this issue to find out what maternity leave looks like from their perspective.

For LGBTQ couples this might be new territory for your employer. Knowing your options prior to having the conversation can help you address questions your employer may have and ensure you know what rights should apply to you.

Does maternity and paternity leave apply to same-sex couples?

While federal law applies to both opposite-sex and same-sex couples, state law varies. The Family Medical Leave Act (FMLA) is the federal act that allows for leave after the birth or adoption of a child and guarantees that your job is there waiting for you afterward. However, a common misconception is that FMLA applies to every employer — this is not the case. The Department of Labor states that in order to take FMLA leave, you must first work for a covered employer. Generally, private employers with at least 50 employees are covered by the law. Private employers with fewer than 50 employees are not covered by the FMLA, but may be covered by state family and medical leave laws. Government agencies (including local, state and federal employers) and elementary and secondary schools are covered by the FMLA, regardless of the number of employees. If your employer does not fall under FMLA, couples could be facing a situation where federal-mandated maternity and paternity leave policies do not apply.

This can also mean that private, employer-specific maternity and paternity leave policies are left to the discretion of the employer for same-sex and opposite-sex couples alike. If you feel like your employer has discriminated against you based on your gender or sexual orientation in regards to maternity/paternity leave policies, you may want to speak with an employment attorney to see what options are available to you to address the issue.

So what if FMLA doesn’t apply?

At that point, you are most likely at the mercy of your employer’s policies and ability to work with you. No matter your gender, orientation or situation, your employer may only offer six weeks’ paid leave to any employee having a baby. You may have a short-term disability policy or be able to work something out with your employer to extend that leave. Your employer may not offer any paid leave. This means you may have to save up sick days or vacation days in order to have any sort of paid leave. You might also have to negotiate with your employer to take a leave of absence, but have a guaranteed job to come back to. In employment-at-will states like North Carolina, there can be some tough choices to make when it comes to how much time you can take unpaid and still come back to your job. The hope is that your employer values you and is willing to work with you to ensure you can have that special bonding time with your new baby while having the assurance that you have the same job when you return to work.

What else should you consider in taking time off of work?

Your own career objectives, your partner or spouse’s maternity/paternity policy, childcare options and other factors may affect what you decide to do in terms of how much time you take off. While it’s easy to focus on the fun parts and excitement of having a baby, it’s important to think through the non-work logistics of what happens once your new bundle of joy arrives, to do what you can to match your workplace considerations to your at-home needs.

If you are considering having a baby, or have one on the way, now is the time to start considering your options for after your baby’s arrival and making sure that your goals and priorities line up with that of your employer.

— Robin M. Lalley is a Family Law Attorney with Sodoma Law York. A member of both the North Carolina and South Carolina Bar, Lalley is also a Certified Parenting Coordinator and Certified Collaborative Law Attorney.

— Attorney Russ A. Brinson practices at Sodoma Law in the area of business litigation and employment law, providing litigation and counseling services to a wide variety of individuals and businesses. He is a superior court mediator and received his J.D. from Wake Forest University School of Law.