Ask an attorney: Maternity and the military

by Capt. Thomas Webb
Baumholder Law Center

Q: As a service member and new mother, what types of rights and protections do I have?

A: On Feb. 5, the Secretary of Defense instituted a new DOD-wide standard of 12 weeks of nonchargeable maternity leave for female service members. This was one of the most recent changes in DOD policy intended to benefit new mothers. While this announcement received a lot of media attention, there are plenty of other protections that are less well-known. This article presents a few Army-specific policies that new mothers should know about before heading back to work.

• Maternity leave: All female service members that give birth and keep the child or children are given 12 weeks of maternity leave starting on the day they are released from the hospital. If an eligible service member requests maternity leave, it must be granted. No commander is permitted to disapprove the leave. While the minimum is 12 weeks, a commander or medical provider can approve additional convalescent leave when they believe it is appropriate. Furthermore, no service member’s career can be disadvantaged by her request for maternity leave. This includes limitations on assignment, performance reviews or selection for training or education.

• Return to duties: Barring complications, issues or additional convalescent leave, Soldiers remain eligible for field training, mobility exercises and deployments with a few exceptions. Mothers will be granted a four-month deferment from duty away from the home station. This includes all temporary duty and field exercises. A new mother is nondeployable for six months from the date of the child’s birth, or longer, if the commander deems it operationally feasible. Additionally, there will be no requirement to meet fitness standards, meet height and weight or pass an Army Physical Fitness Test for six months following the birth of the child.

• Breast-feeding: Military leaders are encouraged to support breast-feeding service members, employees and contractors. The ability to continue breast-feeding after returning to work involves space, time and support. In the garrison environment, commanders are responsible for designating a private space, other than a restroom, for service members to breast-feed. The space must have a lock, place to sit, electrical outlet and access to a safe water source within a reasonable distance. Mothers must also be given a reasonable amount of time to express milk, taking into account that every individual’s situation is unique. In the field, there must be a private space that is shielded from view and allows access to soap, water and cleaning equipment.

When possible, it should also have an electrical outlet and place to sit. If conditions permit, a mother in the field should be able to transport milk back to garrison or store it. If that is not possible, commanders must still ensure there is adequate time to express milk to prevent engorgement and maintain a mother’s capacity for lactation. Commanders are encouraged to take these requirements into account when deciding whether to select new mothers for duty.

If you would like more information about official policies or you feel as if your command is violating your rights and protections, contact your local legal assistance office for help.

Editor’s note: This article is for general information only and does not constitute legal advice or create an attorney-client relationship. You should always consult an attorney for specific legal questions.