Please ensure Javascript is enabled for purposes of website accessibility The impact of Virginia’s maternity leave law | Brown & Brown Absence Services Group

Written in collaboration with Michael Kirwin, MD and Nahille Natour, MD, Doctors of Obstetrics and Gynecology and Brown & Brown Absence Services Group Physician Consultants

The Governor of Virginia recently signed into law a bill mandating insurers that issue individual or group short-term disability policies for childbirth, provide benefits for a minimum of 12 weeks following delivery. This law goes into effect July 1, 2021. Having previously passed a law, effective July 1, 2020, mandating stronger accommodations for employees during pregnancy, childbirth, and the postpartum period, the new law goes beyond the prior legislation, providing paid absence for a longer period, without a requirement to demonstrate an impairment.

In anticipation of how this new law will impact the absence industry, two of our board-certified Obstetrics and Gynecology physician consultants share their opinions on how this new mandate may influence the standard of care.

Two physicians’ perspectives
Michael Kirwin, MD
Historically, The American College of Obstetrics and Gynecology has generally encouraged patients and their doctors/providers to be cautious when claiming disability during pregnancy or postpartum periods, and instead suggest seeking on-the-job accommodations where appropriate. For example, if a pregnant employee has a medical restriction or limitation on time spent standing, as opposed to an accommodation, the employer may respond that the employee is unable to fulfill the job requirements, inadvertently disqualifying them for their job.

Since this law automatically mandates benefits for an extended period, without a requirement to show additional impairment, it is less likely that an employer will inadvertently disqualify an employee from a job post-delivery due to claimed restrictions and limitations. In essence, the law effectively changes the standard of care as it now becomes typical and customary to grant 12 weeks of recovery for any delivery in Virginia.

Given that a mandate on disability insurers for a specific benefit related to a specific condition is somewhat unusual, it is fair to say that it is difficult to predict what impact this law will have on the absence industry. From my experience as a medical file reviewer, I have noticed that there is an expectation in certain parts of the country to allow for 12 weeks as a standard recovery. With this in mind, if the Virginia law is received favorably, it is likely other states will follow.

Nahille Natour, MD
Compared to other nations, the United States provides limited maternity leave support. The Canadian Government, for example, provides financial support to women during a year-long maternity leave. In my experience working with pregnant and postpartum employees in the United States, most take advantage of Family and Medical Leave Act (FMLA) laws, taking 12, often unpaid, weeks off from work after delivery. For those that do not, it is often a result of being unable to financially sustain taking unpaid leave.  

It is difficult to reconcile physical restrictions and limitations with the needs of a new parent when evaluating medical file review cases where extended maternity leave beyond six to eight weeks is requested — mothers may be struggling with fatigue, breastfeeding, as well as other postpartum conditions. Laws like the one in Virginia, eliminate this type of review entirely, as there will be no question related to restrictions or limitations. 

I expect that the standard will slowly change as more laws like the one in Virginia are enacted and OB/Gyns will shift to recommending 12 weeks off after any delivery. Unfortunately, this will likely also contribute to an increasing disparity in cost for insurance coverage for women versus men.

What the absence industry can expect
This Virginia law may be somewhat unusual today, however, trends in the United States do appear to be shifting in favor of an extended paid maternity leave. A number of companies across the United States have voluntarily chosen to offer their employees extended paid maternity leaves without government mandates. Additionally, proposed legislation by the Biden administration seeks to mandate 12 weeks of paid family leave across the country. We predict that the impact of this Virginia law will have ripple effects throughout the country.

As with any new piece of legislation, industry practices may need to adapt. We stand ready to support our customers with changes that may arise as a result of this new law and laws that follow.