I work from home for a company based in California. I live in Alabama.
I have worked for the company for over 5 years. The company offers no maternity benefits. There are more than 50 employees but we are spread out all over the US.
What is the company required to provide for maternity leave by law?
Yes, that's one of the core reasons for using FMLA.
https://www.dol.gov/agencies/whd/fmla/final-rule/faq
Can I still use FMLA leave during pregnancy or after the birth of a child?
A. Yes. An employee’s ability to use FMLA leave during pregnancy or after the birth of a child has not changed. Under the regulations, a mother can use 12 weeks of FMLA leave for the birth of a child, for prenatal care and incapacity related to pregnancy, and for her own serious health condition following the birth of a child. A father can use FMLA leave for the birth of a child and to care for his spouse who is incapacitated (due to pregnancy or child birth).
The problem is that I’m reading the following,
“Eligible employees: Employees are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and work at a location where the employer has at least 50 employees within 75 miles.”
There are not 50 employees within 75 miles of me all other requirement are met.
There are over 50 employees in the company but most are WFH all over US.
Directly from SHRM:
An employee who works remotely (75 miles or more from the employer's office) is covered under the FMLA if the office to which the employee reports and from which assignments are made has 50 or more employees working within 75 miles of its location.
Are there 50 or more employees who work remotely for your company within 75 miles of the official company address? The other employees’ distance from you isn’t a factor, because although you work remotely, the work you do is assigned from a particular office location.
The person I report directly to is also remote and in NC.
The headquarters that signs my paycheck in in CA.
That’s where it get a little confusing for me.
The office you report to/take direction from is what's used for FMLA, not where your paycheck is mailed from.
If you report to an office in NC, there needs to be at least 50 other employees that report to that office, or work within 75 miles of that office.
You can ask HR if you are going to be eligible for FMLA, as they would be able to determine if there are enough employees.
You may not be eligible, and you have to request an ADA accomodation for immediately post birth to recover. Generally that's 6 to 8 weeks, but all ADA and PWFA accomodations are subject to "undue hardship" . Your company may be more generous, but you should definitely be finding out NOW. You may honestly have to accept you get little to no leave and whatever plans you had made for recovery or childcare are fucked.
Ugh. This is my worst fear. I’m expecting them to tell me 6 weeks. This is my first child and 6 weeks does not seem nearly enough time.
It's not. And it's fucking barbaric.
And here's the real (potential) rub: many employers require remote employees to have full time care for young children (or really anyone who you may be providing care for) If your plan was to WFH and provide childcare, I strongly suggest having a plan B if (when) the wheels come off that. It can be okay if you have a calm baby, but it falls apart if they're colicky or such. It also goes to hell when they start gaining any mobility at all.
Your employer can fire you for not having childcare. Totally legal.
Is there any negotiation power with HR if they tell me 6 weeks?
At my company, we would let the person apply for a personal leave of absence and we would approve it.
Sure, you can try it. Generally things will be kept relatively standard to prevent future problems. But a lot can depend on your seniority, importance, and if your higher ups will go to bat for you.
The way to boil this down is how many office locations are there and how many employees in the company? If there are 500 employees and 5 office locations you're good. It's dependent on the office you technically "report to" but anymore entire business lines may be completely remote and not really have a connection to an office, technically you're still assigned somewhere and your manager may know, your HR definitely will.
It’s looking highly unlikely that I’m assigned to an office that has 50 employees within the 75 mile radius. Any ideas on how to negotiate with HR if I am not eligible?
They don't have to be within 75 miles so long as they report/allocated/assigned to that office eg. An office in FL can have 100 employees across the country and only 5 within 75 miles and all 100 will qualify for FMLA. It's worth just asking HR where you are assigned and if you qualify for FMLA.
If you don't qualify then the negotiations are going to happen with your manager not HR, and if you're a strong employee who has been there for 5 years most good managers will want to work with you to keep your job - I would advise having a timeline/time-frame for when you expect to be out and for long that way they can be prepared.
Keep in mind FMLA is job protection only, so if your company offers short term disability you'll want to open a claim for partial income replacement.
I think this is going to be the closest to my situation. I have always had really positive reviews from my direct report. I’m going to push for the full 12 weeks.
If the headquarters is in CA, and there are 50 employees within 75 miles of the HQ, and all other criteria are met, then you are eligible for FMLA. Your HR team will tell you if you’re eligible or not. They won’t screw you on this, they’ll be honest. It’s illegal for them not to be. It’s rare you’d ever find a company corrupt enough to deny FMLA to someone who is eligible.