Austin leaders want change after employee who delivered stillborn baby is denied parental leave

When Elena Andres held her stillborn daughter in her arms, she thought there was no way she could feel more devastated than she did at that moment.

The 15-hour labor wrecked her body, and she was drowning in grief. Rather than enjoying the early hours of her daughter’s life, she was filling out a mountain of paperwork and figuring out funeral home logistics.

When Andres notified her employer, Austin Public Health, that she’d be starting her planned maternity leave a little early, the response added insult to all that injury. She no longer qualified for the city’s eight-week paid parental leave, human resources told her.

“I felt so small, like they were saying my pregnancy didn’t count,” Andres said. “Like my daughter didn’t count.”

City of Austin employees can take eight weeks of paid parental leave after “the birth of a child or the placement of a child for adoption or foster care,” per the policy, and up to an additional four weeks unpaid under the federal Family and Medical Leave Act.

But as Andres learned over several painful days of negotiations, people who have stillbirths or lose a child soon after birth don’t qualify for the paid parental leave.

“Apparently our paid maternity leave is only for bonding with the newborn,” Andres said. “It’s not for recovering from birth. … The whole pregnancy, physically, whatever it does to the body of the person, they don’t care about.”

“It was like a kick in the face,” the 38-year-old South Austin mom said.

In a statement, a spokesperson for the city of Austin said federal FMLA guidelines for parental leave do not include stillbirths, which is why the city’s policy does not either.

Jenny LaCoste-Caputo, deputy communications director for the city of Austin, pointed to other leave options, including accrued sick and vacation time, three days of bereavement leave and a leave bank that employees donate to, which can be accessed only once all accrued leave is exhausted.

“City of Austin leadership will ensure any city employee experiencing such a devastating loss receives the support and time they need,” LaCoste-Caputo said. “We care for and value our staff members and are continuously looking for ways to provide needed support and will update policies to do so when those needs become evident.”

The need is evident now, according to several members of the City Council, who say they will be pushing for changes to the policy.

“There is no sensible reason why the City of Austin, who has posed itself as a family-friendly workplace, would hesitate to uphold the strongest parental leave program for our employees,” council member Vanessa Fuentes said in a statement. “I stand with the new parents who have undergone horrific loss and urge they be provided the full eight weeks of paid parental leave.”

Andres cobbled together vacation and sick time, as well as short-term disability coverage, to take six weeks off after getting a doctor’s note to qualify for medical leave under FMLA.

She was set to return to work next week. After The Texas Tribune asked city leadership about the policy, human resources offered her an additional four weeks of paid leave, which she plans to use to deal with her ongoing physical and mental distress. She’s still experiencing pelvic pain and hasn’t yet been able to find a counselor who takes her insurance. And she’s still dealing with the logistics from her daughter’s passing.

Before the city offered additional time off, Andres was preparing to return to work before she even got her daughter’s ashes back.

“It’s cruel. It’s absurd. And it’s unnecessary,” she said.

Preparing for paid leave

When Andres got hired by the city of Austin six years ago, she thought she was upgrading. She’d been working for the state of Texas, which had more opportunity for professional growth, but Austin offered slightly better pay, better benefits and more progressive policies.

At the time, the state didn’t offer any paid parental leave. (Earlier this year, legislators voted to offer six weeks paid parental leave to all state employees.)

Austin was the first city in Texas to adopt a parental leave program in 2013, and this year increased it to eight weeks of paid leave. By October 2024, all city employees will get 12 weeks paid parental leave.

Andres ran into no issues with her paid parental leave when she had her son more than two years ago. So when she found out she was pregnant again last year, she followed the same process to notify her superiors and human resources.

Ilana Panich-Linsman for The Texas Tribune

Ahead of her due date in late May, she did all the baby prep — decorating the nursery, picking out a name — and a lot of work prep. Andres works in contract compliance, so she was conscientious about making sure her department wouldn’t miss any key deadlines.

“I went out of my way to make sure that me being gone was not going to be a burden on my co-workers, on the process, on our policies,” Andres said. “If I had to hand it off, it was a neat little package — people will just have to pick up where I left off.”

Her pregnancy was mostly uneventful. But then, three weeks before her due date, she and her husband both developed food poisoning symptoms. She was throwing up so much she eventually went to the emergency room, where they gave her IV fluids and checked on the baby.

“She was doing better than I was,” Andres said, so once she could keep food down, they sent her home.

But the next day, the baby stopped moving. By the time Andres and her husband returned to the hospital, “she was already gone,” Andres said.

The doctors induced Andres, and she spent 15 hours delivering a full-term, 8-pound, 13-ounce baby without a heartbeat. They named her Maxine.

Haggling with HR

Andres got home from the hospital on Sunday, and on Monday, logged on to her work computer to tidy things up in preparation for her maternity leave to start the next day. But that’s when she learned she no longer qualified for paid parental leave.

“There I was, trying to wrap up my work so my leave wasn’t a burden on my co-workers, or so I didn’t get us in trouble for reports being late,” she said. “I feel so stupid for even trying.”

In an email exchange reviewed by The Texas Tribune, Austin Public Health’s human resources department told Andres she could get a doctor’s note to take time under FMLA, which is unpaid, and use vacation and sick time to cover her salary.

Andres pushed back, trying to clarify why the paid parental leave policy wouldn’t extend to stillbirths. She couldn’t believe she had to haggle with human resources in the immediate aftermath of a tragedy, but she also felt like she wasn’t getting a straight answer.

At one point, the HR person said they were certain of the policy because the department ran into a similar issue last year, after an employee’s child died soon after birth. That employee also didn’t qualify for paid parental leave, according to the email.

“I can’t believe, then, no one thought to say, this should be changed,” Andres said. “It’s something that wouldn’t hurt them at all, but hurt me a whole bunch … and to learn it happened to someone else is so painful.”

Ryan Alter agreed. Alter, an Austin City Council member, said he was “disappointed” this wasn’t elevated up the chain the first time it happened.

Ilana Panich-Linsman for The Texas Tribune

“Whenever that was, last year, or I have to imagine it came up before that … we really should have figured out a way to make this right,” Alter said. “There’s always a way to do right by employees, and I’m disappointed we didn’t get it right this time.”

Alter said he plans to push the city to widen access to paid parental leave, as well as expand child care benefits.

In a statement, Austin Mayor Pro Tem Paige Ellis said the city should stand with Andres and other parents experiencing similar tragedies.

“Paid parental leave not only allows for bonding with the baby, it also supports women’s physical health,” Ellis said. “Beyond her physical health, she will need time to grieve, on top of the heart-rending logistical and paperwork nightmare that accompanies a stillbirth.”

Austin Mayor Kirk Watson echoed that call, saying he was committed to working with the city manager and the council to “explore how we can amend our policies so that we are helping our employees to heal, not adding to their profound sadness.”

There’s been a growing push to include pregnancy loss in parental leave policies, with some private companies allowing employees to take time off after miscarriages. In 2021, Washington, D.C., passed legislation that gives 10 days paid bereavement leave after a stillbirth or the death of a child under the age of 21.

The United States is one of just six countries in the world without a national paid parental leave program, and Texas does not require employers to offer any parental leave benefits. Advocates say expanding paid parental leave is an underutilized tool to help address Texas’ increasing maternal mortality rates, especially among Black women.

“Paid parental leave gives folks access to the most precious resource that we have, which is time,” said Alise Powell, a senior policy analyst with the National Birth Equity Collaborative. “Time to heal, to bond, to adjust to this new normal, and to figure things out and pivot if plans that you’ve made … ended up being different.”

Powell said excluding pregnancy loss from these policies only excludes people who are facing extreme grief, as well as the exact same physical complications as someone who delivered a live baby.

Andres was nowhere near ready to go back to work next week. She’s still mired in grief and dealing with physical pain from the delivery. The additional month off will help, but it doesn’t make up for what the city put her through in the immediate aftermath of this tragedy, she said. And since she had to burn through her vacation and sick days, she has no leave saved up if she or her 2-year-old needs her to take time off of work.

She’s used most of her time off to do exactly what the paid leave was meant for — bonding with her child. It looks different than she imagined, but every painful task, from requesting her death certificate to handcrafting a tiny urn, was an act of love that bonded her more closely with the daughter she won’t get to raise.

“I had a baby. There was a physical child,” she said. “It just negates the whole thing. I really thought this city was different.”

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From The Texas Tribune