In recent months, there has been increased attention to paternity leave with several high profile male CEO’s taking such leave. In addition, more and more new fathers are seeking and taking paternity leave than have in the past.
With this increase in public attention to this issue, and changing family dynamics that has led to more men requesting paternity leave, companies need to ensure that their policies and practices are in compliance with the law.
A review of the rules applicable to paternity leave is helpful:
- Under the FMLA, qualifying employers must provide 12 weeks of unpaid leave (but with benefits) to employees, both men and women, for the care of a new born child.
- Employers are free to provide more leave than required by the FMLA, or even some level of paid leave if they wish, and employers not subject to FMLA are also permitted to provide some level of leave.
- Whatever level of leave is permitted, it must be provided on a gender-neutral basis. As a result, if your company provides four weeks of paid leave for maternity leave, it must also, according to EEOC guidance in 2010, provide the same amount of paid leave for paternity leave.
- However, employers may provide additional leave to female employees who require such additional leave due to a disability related to her pregnancy or childbirth without violating this guidance from the EEOC. For example, if a company provides paid leave for four weeks that must be provided equally to both men and women, but if a female employee requires an additional two weeks of leave due to complications in her pregnancy or in childbirth, such an approach is permissible.
- Employers cannot retaliate or otherwise treat employees who opt to take such leave differently than those who do not take leave, and this likely includes even subtle comments about requests for this type of leave.
- Employers may impose rules about required notice of intent to take such leave, so employers can prepare for a prolonged absence of an employee from work.
Employers should review and, if necessary, update policies and practices on leave time provided for paternity to ensure compliance with the law. As noted above, given the increased attention this issue has gotten in recent months, it is likely many employers will see an increase in the requests for such leaves (and possible enforcement by the EEOC).
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
