Adopt Different Policies for Childbearing and Childrearing. As defined by the EEOC and the federal courts, Maternity leave is for childbearing and is for women experiencing pregnancy-related short-term medical disabilities (e.g., those resulting from an abortion, pregnancy complications or childbirth). Paternity leave, parental leave, and childrearing leave are all leaves to care for newly born or adopted children. For birth mothers parental leaves are leaves taken that extend beyond the period of physical disability following childbirth (e.g., in the case of an uncomplicated delivery, a leave that extends beyond six weeks following childbirth). Different mandates apply to leaves for childbearing and childrearing and it is easier to design compliant policies when recognizing the differences in the two types of policies.
What to Include in Your Maternity Leave Policy – The Pregnancy Discrimination Act. The terms and conditions under which institutions provide maternity leave must be at least as generous as the terms and conditions under which non-maternity short-term disability leaves are provided. For example, if the medical leave policy provides faculty with up to three months of paid medical leave each year, then women professors must be able to use their allotment of paid medical leave to take paid maternity leave. If faculty on medical leave continue to accrue service time towards the granting of sabbaticals or eligibility for promotion or retirement benefits, then women professors on maternity leave must also be able to accrue service time for these same purposes. Finally, the Pregnancy Discrimination Act was meant to provide a floor below which maternity leave benefits may not drop -- not a ceiling above which they may not rise. Thus colleges and universities may elect to provide maternity leave (during any periods of pregnancy-related physical disability) on more generous terms than those provided to faculty taking other types of medical leaves. (California Federal Savings and Loan Association v. Guerra, 479 U.S. 272, 1987).
One of the challenges of providing maternity leave for women faculty in higher education is that 6-8 weeks of leave doesn’t fit neatly into a quarter or semester that ranges from 10-15 weeks. And unlike elementary and secondary education the market for substitutes is not one where individuals are hired by the day, but rather one where they are hired by the course.
One of the best practices in providing maternity leave are Active Service – Modified Duties Policies. Under this type of policy the university recognizes that a pregnant woman’s due date is an approximation of the baby’s birth date and that the actual birth date will come roughly 2 weeks before or after the due date. A second assumption is that the pregnancy and delivery will be normal – requiring 6-8 weeks of post-partum recovery. Using these figures, the Department Chair determines if it is probable that the pregnant faculty member will miss more than a certain number of class days. (At Hampden-Sydney College we used 10 class days which equals two weeks.) If the probability is that the professor will miss more than the specified number of class days the following apply:
For example, suppose a professor, who normally teaches 3 courses/semester, is pregnant with a due date on September 20. The department chair ascertains that it is probable the faculty members will miss at least 10 class days for post-partum recovery and requests (and receives) funding from the central administration to hire adjunct faculty to cover the 3 courses the pregnant professor would normally teach. The professor begins the semester working full-time, on modified duties (e.g., advising students, doing research, applying for grants, serving on committees, etc.). Assume she goes into labor on September 10. She begins a 6-8 week period of paid maternity leave, where she has no responsibilities at work. (The length of this leave depends on how complicated the delivery is, and might extend beyond 8 weeks for a very complicated birth.) After the leave period ends, and until the end of the semester, the professor returns to full-time work and modified duties.
Faculty colleagues benefit because no one is forced to teach uncompensated overloads. Students benefit because they have the same professor during the entire semester. The pregnant professor benefits because she receives an adequate amount of leave and doesn’t feel pressured to cut her leave short because she is burdening her colleagues or students. Universities benefit because the costs of covering the courses is insubstantial given the size of most college and university payrolls. Moreover, the fertility rates of women in higher education are below 1.0, so these hiring replacement faculty is not an expensive proposition, especially when considered over the career of a ladder rank professor.
Providing Maternity Leave under an Ad Hoc Policy. A university with an ad hoc policy is still required to provide maternity leave on terms at least as generous as the terms under which other types of short-term medical leaves have been provided to faculty at the university. First, research how previous, non-pregnancy related, faculty medical leaves have been handled. For example, suppose you discover that within the last twenty years four faculty utilized medical leave, one for hip replacement surgery, one to recover from a heart attack, one to recover from breast cancer surgery and one to recover from several broken bones following a bicycle accident. In each case the employees were allowed paid leave and full benefits for the entire duration of their recovery period (as determined by their physicians). Leave was provided without regard to the employees’ years of service at the college. Then, in the case of the pregnant faculty member, the university will need to provide her with as much paid maternity leave as she needs to recover from childbirth and any pregnancy-related complications she may experience – with full benefits during the period of disability and without regard to her length of service at the institution.