Whether you accrue vacation while on maternity leave comes down to two things: whether the leave is paid or unpaid, and how your employer treats other employees on comparable medical leave. Federal law does not force employers to let you build vacation during unpaid leave, but it does require equal treatment. If coworkers on other medical or disability leave keep accruing, you must too. Any vacation you had banked before leave started stays yours.
Paid Time Usually Accrues, Unpaid Time Usually Doesn’t
The single biggest factor is whether you’re being paid during the leave. When you use accrued vacation, sick time, or other paid leave to cover part of your maternity absence, most employer policies treat you as actively employed for accrual purposes. You’re drawing from one bucket and filling another. FMLA specifically permits employees to substitute accrued paid leave for unpaid FMLA leave, and employers can also require it.1U.S. Department of Labor. FMLA Frequently Asked Questions
During any portion that is unpaid, the picture shifts. FMLA regulations state that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.”2eCFR. 29 CFR 825.215 – Equivalent Position Whether you actually do accrue then depends on your employer’s policy and how it treats other unpaid medical leaves.
Most maternity leaves are a patchwork. Someone might use three weeks of accrued PTO, receive six weeks of short-term disability payments, then take three weeks of unpaid FMLA leave. Accrual generally continues during the paid portions and stops during the unpaid portion, assuming the employer treats other unpaid medical leave the same way. Short-term disability is the wild card. Some employers count STD payments as active pay status for accrual and some don’t, so check before leave begins.
What Federal Law Requires
The Family and Medical Leave Act gives eligible employees up to 12 weeks of unpaid, job-protected leave for the birth and care of a new child.3U.S. Department of Labor. Family and Medical Leave (FMLA) The statute explicitly says taking FMLA leave does not entitle you to accrue seniority or employment benefits during the leave period.4Office of the Law Revision Counsel. 29 U.S. Code 2614 – Employment and Benefits Protection The word “may” in the regulation matters: FMLA doesn’t prohibit accrual during unpaid leave; it just doesn’t require it. That leaves room for employer policy and state law to fill the gap, and many do.
What FMLA does guarantee is that any vacation you accrued before leave started must still be there when you return.4Office of the Law Revision Counsel. 29 U.S. Code 2614 – Employment and Benefits Protection Your employer cannot zero out your PTO balance because you took FMLA leave.
Equal Treatment Under the Pregnancy Discrimination Act
The Pregnancy Discrimination Act, an amendment to Title VII, is where the real teeth are on vacation accrual. It requires that employees affected by pregnancy “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”5Office of the Law Revision Counsel. 42 USC 2000e – Definitions
In practice: your employer cannot single out maternity leave for worse treatment than other medical leave. EEOC guidance is specific. If employees on leave for other medical reasons are credited with time for calculating vacation entitlement, an employee on pregnancy-related leave must get the same credit.6Legal Information Institute. Questions and Answers on the Pregnancy Discrimination Act
Most disputes turn on this consistency requirement. An employer with a blanket “no accrual during unpaid leave” policy is on solid ground because no one is accruing. An employer that lets someone recovering from surgery keep building vacation while denying the same to someone on maternity leave is violating the PDA. The comparison class is employees who are similarly unable to work, not every employee in the company.
State Paid Family Leave Can Change the Math
More than a dozen states and the District of Columbia have paid family leave programs that provide partial wage replacement to employees for reasons including bonding with a new child, and several more are phasing in through 2028.7U.S. Department of Labor. Paid Leave Maximum weekly benefits vary by state, generally ranging from roughly $900 to over $1,700.
An important wrinkle catches many employers off guard. The Department of Labor has taken the position that when an employee is receiving state paid family or medical leave benefits during FMLA leave, the employer cannot unilaterally require the employee to use accrued PTO at the same time. Substitution requires mutual agreement in that situation. If you’re receiving state benefits, your accrued vacation balance may stay untouched, preserving those days for use after you return.
State programs differ in eligibility, benefit amounts, and how they interact with employer leave policy. Check your state’s specific rules well before your due date.
What to Check in Your Employer’s Policy
Because federal law sets a floor rather than a ceiling, your company’s handbook controls most outcomes. Before leave starts, get written answers to these questions:
- Does the PTO policy tie accrual to “hours worked,” “active pay status,” or “employment status”? Each phrase produces a different result.
- How does the company treat other medical or disability leave? If a coworker recovering from heart surgery keeps accruing vacation, you should too.8U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Pregnancy Discrimination and Related Issues
- Does short-term disability count as paid leave for accrual purposes? The distinction can mean weeks of lost accrual.
- Is there a use-it-or-lose-it cap that resets at year-end? Being on leave when the reset happens could cost you accrued days.
Email HR rather than asking in person. The paper trail matters if anything goes wrong later.
If You’re Treated Worse Than Other Medical Leave
If your employer denies you vacation accrual that other employees on comparable leave receive, there are two paths depending on which law was violated.
For FMLA violations, contact the Department of Labor’s Wage and Hour Division at 1-866-487-9243. Complaints are confidential, and your employer is prohibited from retaliating against you for filing one.9U.S. Department of Labor. How to File a Complaint The general statute of limitations for FMLA claims is two years from the date of the violation.10U.S. Department of Labor. Fact Sheet 77B – Protection for Individuals Under the FMLA
For pregnancy discrimination claims under the PDA, file a charge with the Equal Employment Opportunity Commission, which enforces the requirement that pregnant employees receive the same leave privileges and benefits as other employees similar in their ability or inability to work.8U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Pregnancy Discrimination and Related Issues EEOC charges generally must be filed within 180 days of the discriminatory act, extending to 300 days in states with their own anti-discrimination agencies.
The strongest claims come from employees who documented the policy inconsistency before filing. If you asked HR in writing how accrual works and were treated differently than that answer described, that record is exactly what investigators look for.