Maternity Leave Without FMLA: What Employers Must Do When an Employee Isn’t Eligible
When an employee asks for maternity leave but is not eligible for FMLA, the immediate question for HR and business owners is: what obligations still apply—and what options are available? This SwiftSDS guide explains maternity leave without FMLA, including what happens if an employee is not eligible for FMLA, how to manage job protection and benefits, and which federal and state rules may still require leave or accommodations.
For broader context on baseline federal leave concepts, see SwiftSDS’s overview on how long is maternity leave.
What FMLA Covers (and Why Some Employees Aren’t Eligible)
The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period for certain family and medical reasons, including pregnancy, prenatal care, childbirth, and bonding.
Core FMLA eligibility rules (maternity leave)
An employee is generally eligible if:
- The employer is covered (typically 50+ employees within 75 miles, or certain public agencies/schools), and
- The employee has worked for the employer for at least 12 months, and
- The employee has 1,250 hours worked in the prior 12 months.
These are the practical “gatekeepers” behind questions like “what if I don’t qualify for FMLA?” and “what happens if an employee is not eligible for FMLA?” The answer is: FMLA job protection doesn’t apply, but several other legal obligations often still do.
If you’re handling non-traditional workforces, also review are contractors eligible for fmla (misclassification can create unexpected exposure).
What Happens If an Employee Is Not Eligible for FMLA?
If an employee is not eligible for FMLA, you should not stop analysis at “FMLA denied.” Instead, run a structured compliance check. In many situations, maternity-related leave or time off may be required under other federal laws, employer policies, or state/local rules.
1) Pregnancy-related conditions may trigger ADA obligations
While “pregnancy” alone is not always a disability, pregnancy-related impairments (e.g., gestational diabetes, preeclampsia, pregnancy-related sciatica) can qualify as disabilities under the Americans with Disabilities Act (ADA). If so, the employer may need to provide reasonable accommodation, which can include leave when it’s effective and not an undue hardship.
Action step for HR: treat the request as a potential ADA interactive process issue and document it. SwiftSDS resources that support this workflow include ada hr and ada forms for employers.
2) Pregnancy Discrimination Act (PDA) requires equal treatment
Under Title VII as amended by the Pregnancy Discrimination Act (PDA), employers may not discriminate based on pregnancy, childbirth, or related medical conditions. A key compliance point: if you provide leave or accommodations to employees similar in their ability/inability to work, you must provide comparable treatment to pregnant employees.
This is where many “not eligible for FMLA” maternity situations become risk points—especially if the employer offers medical leave, light duty, or flexibility for other conditions but denies them for pregnancy.
For additional equal employment context, see as it pertains to employment opportunity the eeo strives to.
3) The Pregnant Workers Fairness Act (PWFA) may require accommodations
The Pregnant Workers Fairness Act (PWFA) (effective 2023) requires covered employers to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions—unless undue hardship applies. Depending on the circumstances, accommodations may include:
- Temporary schedule changes
- Additional breaks
- Modified duties
- Time off to attend prenatal visits
- Leave (even when the employee is not FMLA-eligible), if reasonable
Practical takeaway: A denial of FMLA eligibility does not end the employer’s accommodation duties.
4) State family/medical leave or paid leave laws may apply
Many states provide job-protected leave, paid family leave, or pregnancy disability leave that can cover employees who don’t meet FMLA thresholds.
SwiftSDS location pages can help you confirm posting and compliance coverage:
- Massachusetts (MA) Posting Requirements (often relevant due to state-specific leave and notice rules)
- Maryland (MD) Labor Law Posting Requirements
- Florida (FL) Labor Law Posting Requirements
- For county requirements, see St. Mary’s County, MD Labor Law Posting Requirements
If you operate in PA/Ohio, compare federal and state approaches in fmla requirements pa and fmla leave ohio.
“Can I Take 12 Weeks Maternity Leave Without FMLA?” (Employer Reality Check)
Employees often ask “can I take 12 weeks maternity leave without FMLA?” Employers ask the same question in policy form: Do we have to hold the job for 12 weeks if FMLA doesn’t apply?
From a federal-only standpoint:
- No automatic 12-week job-protected entitlement exists without FMLA.
- However, you may still need to provide time off due to:
- ADA (for pregnancy-related disability)
- PWFA accommodations
- Equal treatment requirements under PDA/Title VII
- State/local leave laws
- Your own leave policies (which can become enforceable if applied inconsistently)
Actionable approach for HR and business owners
- Confirm FMLA eligibility using objective criteria and consistent documentation.
- If not eligible, evaluate whether the request qualifies under PWFA/ADA (interactive process).
- Review your existing leave policies (medical leave, personal leave, PTO banks, short-term disability coordination).
- Check whether a state program provides job protection or pay replacement.
- Decide and document:
- Approved leave duration
- Benefits continuation rules
- Return-to-work expectations
- Any accommodations offered instead of (or in addition to) leave
If you do allow extended time off beyond what is required, set clear parameters. For related planning, SwiftSDS covers scenarios involving longer leaves in can fmla be extended past 12 weeks.
FMLA Regulations for Maternity Leave: Compliance Steps Even When FMLA Doesn’t Apply
Even if an employee is not eligible for FMLA, employers should still align decisions with compliance best practices drawn from FMLA regulations for maternity leave, because consistency reduces risk and improves defensibility.
Document consistently and avoid retaliation
Do not penalize employees for requesting leave or accommodations. Retaliation claims often arise when the employer:
- Cuts hours after a pregnancy/leave request
- Changes assignments without a legitimate reason
- Applies attendance policies inconsistently
For general workplace rights context, SwiftSDS also summarizes baseline protections in 5 rights of workers.
Review posting and notice obligations
Even though the FMLA poster itself isn’t listed in this hub’s notices, employers should confirm they’re meeting general federal posting requirements and wage/hour notice obligations.
As part of your overall compliance board, ensure the required wage/hour notices are current, including:
- Employee Rights Under the Fair Labor Standards Act
- Spanish version if applicable to your workforce: Derechos de los Trabajadores Bajo la Ley de Normas Justas de Trabajo (FLSA)
If you have Massachusetts employees, note state-specific notice obligations may be relevant to parental/medical leave administration. Maintain the required postings, including Notice: Parental Leave in Massachusetts.
For a complete baseline list, see Federal (United States) Posting Requirements.
Practical Checklist: Handling Maternity Leave Without FMLA
HR compliance checklist
- Step 1: Determine coverage and eligibility (FMLA employer coverage + employee tenure/hours).
- Step 2: Send a written response confirming whether FMLA applies and outlining next steps.
- Step 3: Trigger PWFA/ADA review if the request includes medical limitations or pregnancy-related conditions.
- Step 4: Apply policies uniformly (avoid treating pregnancy worse than comparable temporary medical situations).
- Step 5: Check state/local rules where the employee works (posting requirements can be a strong indicator of applicable mandates).
- Step 6: Document the final leave/accommodation plan and expected return-to-work process.
FAQ: Maternity Leave Without FMLA
What happens if an employee is not eligible for FMLA?
They do not receive FMLA’s automatic 12 weeks of job-protected leave, but the employer may still have obligations under PWFA, ADA (if pregnancy-related disability applies), PDA/Title VII (equal treatment), state leave laws, and the employer’s own policies.
What if I don’t qualify for FMLA—can my employer deny all leave?
Not necessarily. Even when an employee is not eligible for FMLA, the employer may need to provide leave as a reasonable accommodation (PWFA/ADA) or provide leave consistent with how it treats other employees with temporary medical limitations (PDA/Title VII), plus any state/local leave requirements.
Can I take 12 weeks maternity leave without FMLA?
There is no universal federal right to 12 weeks without FMLA. However, 12 weeks (or more) may be available through state programs, employer leave policies, short-term disability coordination, or as an accommodation depending on the facts and applicable law.
SwiftSDS helps employers stay compliant with evolving federal and state labor law requirements. If you’re building a leave program that goes beyond FMLA, ensure your documentation, postings, and accommodation processes are aligned across locations and consistently applied.