By: Jonathan R. Mook
Although many jurisdictions, including the District of Columbia and Maryland, have taken steps to mandate employers to provide paid leave, including maternity leave, Virginia has adopted a more modest approach with respect to paid leave following childbirth.
What is required
Virginia’s approach focuses on insurance companies and requires that their short-term disability (STD) policies include provisions for maternity leave coverage. Thus, for Virginia employers that choose to provide STD coverage, it now will include disability coverage that arises out of childbirth. More specifically, STD policies that were delivered or issued for delivery in the Commonwealth by an insurer on or after July 1, 2021, must provide a maternity benefit of at least 12 weeks following childbirth.
Not every employee who gives birth, however, will be entitled to the STD maternity benefit. That’s because the employee must meet the current definition of disability outlined in the employer’s STD plan. Additionally, some pre-existing condition limitations of the STD plan may apply to the new maternity benefit. For example, when an employee is within the pre-existing condition limitation of the employer’s STD plan, the maternity benefit won’t be available. An STD plan’s elimination period cannot be used, however, to reduce the mandatory 12-week maternity benefit.
Because STD policies vary depending upon the insurer, Virginia employers should request information from their STD carrier on changes in the policy language for the new maternity leave requirement. You also should ask the carrier whether it will require employees seeking maternity benefits to obtain medical documentation stating they are disabled and unable to return to work for up to 12 weeks.
Some insurance carriers may not require documentation, but if that’s the case, you likely will see an increase in the cost of your STD policies.
What employers should do
There are two important steps that Virginia employers should take in light of Virginia’s maternity disability requirement.
First, employers that have STD plans should contact their insurance carrier to make sure their plan, as well as all policy documents, are accurate and up to date and reflect the Virginia law requiring maternity benefits to be offered.
Second, you should review your current leave policies to make sure they reflect any STD benefits that are available to employees, including STD benefits for maternity leave following childbirth. Assuming you have STD benefits for your employees, make sure the duration of your leave plans conforms to the STD benefits available.
At the present time, employers across Virginia are competing to hire new employees as well as adopting policies to retain their existing workforce. Accordingly, don’t forget to let job applicants and existing employees know about any STD benefits for childbirth that now are available due to Virginia’s new law. This is a benefit that may well prove to be significant to both job applicants and employees alike.