United States: "Congratulations – Now, Back To Work!" What Employers Need To Know About The Fifth Trimester

Last Updated: June 9 2017
Article by Lisa McGlynn

Parents everywhere are familiar with the joys and trials of the three trimesters of pregnancy. The term "fourth trimester" has also gained widespread recognition, that three-month period when a baby gets used to living outside the womb and the mother recuperates from childbirth. 

A new book authored by Lauren Smith Brody, "The Fifth Trimester," has introduced the titular concept of an additional phase in a mother's life. Specifically, this is the period of time when a new mom first leaves her newborn to return to her job. Employers should be aware that this transition can come with growing pains on all sides, and therefore consider strategies for easing the process. 

The Struggle Is Real: Returning To Work After Giving Birth

Coupled with the struggle of leaving a baby in the care of others, women thriving in their careers prior to the birth of their children often find it difficult – physically and emotionally – to adjust to all of their former workplace duties on top of young motherhood. Of the hundreds of women surveyed or interviewed for Brody's book, 75% expressed they wished they had a longer maternity leave. On average, they stated they felt physically back to "normal" 5 1/2 months after delivery, and mentally six months after delivery.

Notably, one in seven mothers reports experiencing some form of postpartum depression, and that number is higher still among those with a relatively short maternity leave. Of course, many mothers do not get the benefit of maternity leave and must return to work soon after delivery, either to avoid losing their job or because they cannot afford a period of unpaid leave. This means many moms return to work before they feel restored physically or emotionally. It should come as no surprise that, generally speaking, the shorter the maternity leave period, the tougher the transition on both the new mom and the employer. 

First Things First: Legal Requirements

In order to provide a workplace that is welcoming to new mothers (and those considering growing their family at some future point), you should first be aware of the benefits an employer is legally required to provide. The federal Family and Medical Leave Act (FMLA) provides 12 weeks of job-protected, unpaid leave during any 12-month period to eligible employees for, among other things, "the birth of a son or daughter of the employee and in order to care for such son or daughter" and "because of the placement of a son or daughter with the employee for adoption or foster care." 

However, FMLA leave only applies to individuals employed by the same employer for at least 12 months within the relevant statutory period, and who have worked at least 1,250 hours during the 12-month period immediately preceding commencement of the leave, and where the employer has 50 or more employees within a 75-mile radius. Thus, whether the FMLA is applicable should be determined as quickly as possible after an employee announces her pregnancy.

That's not to say you're off the hook if FMLA doesn't apply; many states, such as California and Oregon, require some form of maternity leave in other circumstances as well, and some dictate the leave be paid. 

You should be familiar with which laws apply to your workplace, and how their applicability might vary depending on different situations. For instance, New Jersey provides for six weeks of leave with payments from the state of up to $633 per week after a vaginal delivery, and eight weeks of such payments following a caesarian section. To add to the confusion, the state of the law is constantly in flux, so there may be new laws in place that did not exist the last time an employer had an employee on maternity leave.

Washington, D.C.'s Universal Paid Leave Amendment Act just went into effect April 7, 2017, and constitutes one of the most expansive paid leave laws in the country. Specifically, it provides for up to 16 weeks of paid family and medical leave, including up to eight weeks of parental leave, to be used within one year of the birth of a child, the placement of an adopted or foster child, or the assumption of legal guardianship of a child. 

Best Practices For Employers

Regardless of whether a state or federal law applies to your workplace, there are some best practices you can follow in order to provide a welcoming workplace. You would be wise to speak with employees about post-delivery workplace accommodations before they start their leave, including the anticipated length of leave and whether more flexible work hours will be needed upon their return.

You must also consider your own workplace policies and determine what kinds of medical leave you have provided to employees in the past. For example, while Florida does not have a state law requiring employers to provide maternity leave, employers are legally charged to act consistently when providing leave to employees. This means if you provided a leave of absence for an employee recovering from a car accident, you must likewise provide leave to someone recuperating from childbirth or risk facing a discrimination claim. 

If an employee is on leave following the birth of her child, you should reach out to her as the end of the leave period approaches to firm up a definite return date. This also allows the employee an opportunity to voice any concerns associated with her return. In some situations, a simple solution, such as installing a lock on an office door to allow for privacy to express breastmilk, could go a long way to ease the transition. 

Transition Time

Once a new mother returns to her job, whether she has been out for 12 weeks on FMLA leave or for a significantly shorter period, there will likely be a transition period for both you and the employee. It is not unusual for new moms to need some additional time off for medical appointments or flexibility of hours as they manage child care. For example, business meetings that start very early in the morning or extend past normal business hours can cause extreme stress for parents with children in daycare, and managers might not otherwise consider such concerns unless they are aware of the fifth trimester burdens. 

Some jobs, by their nature, lend themselves to easier solutions to these problems, which is why planning ahead and keeping open lines of communication are important. You may also consider whether offering employees the option to work from home, at least some of the time, would be realistic considering your business and the job duties at issue. Likewise, employees without young children may be frustrated by perceived special treatment for a returning parent. Allowing a forum to voice any and all concerns is important to avoid a problem festering into a bigger issue.  

Further, some returning moms find it difficult to immediately fill their plate with work. When anticipating an employee's return, you should be prepared with assignments and tasks for her. Some employers may find it helpful to have a "ramp-up" period, where a returning employee gradually receives more and more work as they return to full capacity. If employees are measured by their output, such as in sales, reducing requirements during this ramp-up period can also help ease a transition. Similarly, some companies offer a "ramp-down" period, as employees nearing the birth of a child can start to transition some of their work before their leave begins. These measures help ease the transition for both the employer and the new mom, preventing a situation where she is desperately trying to complete assignments prior to her due date, or responding to work emails while she is in labor. 

Breastfeeding Can't Be Ignored

Another important topic to consider for returning moms is breastfeeding. The Fair Labor Standards Act (FLSA) provides that, for up to one year after a child's birth, a nursing mother must be provided a "reasonable break time" to express milk "each time such employee has need to express the milk." These breaks may be unpaid. You must also provide a private place for expressing milk, other than a bathroom, that is shielded from view and free from intrusion. Be aware that some state laws require even more of employers in this regard, so check in your local jurisdiction to determine if additional breastfeeding rules exist.

Further, in 2015 the Equal Employment Opportunity Commission (EEOC) officially adopted the position that lactation is protected by the Pregnancy Discrimination Act (PDA).  Accordingly, failure to allow for time to express breastmilk could result not only in FLSA violations, but also a discrimination lawsuit under the PDA. 


Like all transitions, the "fifth trimester" doesn't last forever. As a baby begins sleeping through the night and child care becomes routine, parents often feel better equipped to manage their various roles. Employers that are flexible during this period may likewise be rewarded with more loyal, happy employees who are likely to remain in your service for years to come. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Lisa McGlynn
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions