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Is It Time to Update Your Parental Leave Policy?

According to the United States Department of Labor (DOL), nine out of 10 new fathers in the United States took some time off work for the birth or adoption of a child, but the amount of time that new dads take off work is generally very low. Seven out of 10 fathers took 10 days or less of parental leave. The DOL notes that fewer employers offer paid parental leave for men than for women, and fewer men report receiving paid parental leave than women. While 21% of women take parental leave, only 13% of men do the same.

Updating your parental leave policy to offer leave for new dads could be good for your business. A recent study by Ernst & Young found that 83% of millennials would be more likely to join a company that offered paternity leave. Additionally, the Council of Economic Advisers found that allowing more expansive parental leave improved an employer’s recruitment and retention of employees and also improved employee motivation and productivity. Many companies are taking note: Netflix is offering “unlimited” paternity leave for fathers and mothers during the child’s first year. Microsoft offers 12 weeks of paid leave for mothers and fathers, Ford Motor Company offers eight weeks paid leave, and Amazon gives all parents six weeks of paid leave.
Ensuring your parental leave policy complies with the Equal Pay Act, Title VII, and the Family Medical Leave Act is also a good move for employers who want to avoid lawsuits or expensive settlements.
Legal Requirements for Paternity Leave
Employers should carefully distinguish between leave that is related to physical limitations caused by pregnancy or childbirth and leave that is for purposes of bonding with or providing care for a child. Parental leave for bonding and care of a child must be equal for fathers and mothers. However, employers may give mothers additional pregnancy-related medical leave.
Under the Equal Pay Act and Title VII, parental leave for bonding and care must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
The Family Medical Leave Act (FMLA) is a federal law that was passed in 1993 with the purpose of balancing “the demands of the workplace with the needs of families.” Under the FMLA, covered employers are required to give at least twelve weeks of unpaid leave to care for a newborn or newly adopted child. Under the FMLA, mothers and fathers are given equal time.
Example Parental Leave Policy #1:
Your company offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. Your company also offers new parents, whether male or female, six weeks of parental leave.
A male employee alleges that your policy is discriminatory, because it gives up to 16 weeks of leave to women and only six weeks of leave to men.
Your company’s policy does not violate Title VII. Women and men both receive an equal amount of parental leave and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.
Example Parental Leave Policy #2:
Your company offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. You also offer mothers an additional six months of paid leave to bond and care for their new babies. You don’t provide any paid parental leave for fathers.
A male employee alleges your policy is discriminatory, because it gives mothers six months of leave to bond with their babies and does not give fathers leave to do the same.
This time, your company’s policy violates Title VII, because it does not provide paid parental leave on equal terms to women and men.
According to an EEOC news release, the cosmetics company Estee Lauder paid $1.1 million to settle an EEOC class sex discrimination lawsuit. Estee Lauder provided new fathers less leave to bond with their newborns than new mothers, violating the Equal Pay Act and Title VII. The company settled in July of 2018.
California Federal Saving & Loan Association v. Guerra, 479 U.S. 272, 290 (1987) was a parental leave lawsuit that went all the way to the Supreme Court. The highest court in the country decided that California’s law that required employers give up to four months of medical leave for pregnant women was lawful. Even though women were the only beneficiaries of the statute, the court did not invalidate the law, because it was narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth, or related medical conditions.
The Eighth Circuit Court of Appeals followed a similar line of reasoning in Johnson v. University of Iowa, 431 F.3d 325, 328 (8th Cir. 2005). In that case, a leave policy that applied only to biological mothers was lawful. The policy did not discriminate against male employees, because the leave was given to mothers only because of the physical trauma they sustain giving birth. Since women were awarded leave for a valid reason that was “wholly separate from gender,” the policy was lawful.
Is it time to father in a new parental leave policy at your organization? Make sure that your policy offers equal time for mothers and fathers to care for and bond with their children. You can give moms more time off, but only if it’s related to the physical challenges mothers face due to pregnancy and childbirth.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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