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Breadwinner, caregiver, or both: Is it a new day for Dad in the workplace?

Prince William is back at work now, but immediately following the birth of his baby on July 22, he took some time off from his duties in the British Royal Air Force – paid time off.

American golfer Hunter Mahan also famously left work recently because his wife was ready to deliver their baby. He dropped out of the Canadian Open in July to rush home for the birth even though he was leading a tournament with a $1 million winner’s prize.

Every day less prominent new dads face a tough decision about whether to take time off for the birth of a baby and if so how much. Even though laws and employer policies have changed over the years making the workplace more parent-friendly, dads wanting to take significant time off to bond with their children face obstacles.

FMLA and new parents
Unlike Prince William, most new parents in the United States don’t get paid time off, although employees covered by the Family and Medical Leave Act (FMLA) are guaranteed up to 12 weeks of job-protected leave for the birth of a child or the placement of an adopted or foster child.

The federal law may be straightforward as it applies to new parents, but employers still need to exercise care.

Both men and women who are covered employees under the FMLA are eligible to take leave for childbirth and to care for a newborn as well as for the placement of an adopted or foster child. The law allows 12 weeks, and it must be taken within a year of the child’s birth or placement. If a married couple works for the same employer, the mom and dad get a total of 12 weeks, meaning if they both take leave they need to split the time.

Cathleen Yonahara, an attorney at Freeland Cooper & Foreman LLP in San Francisco, reminds employers that FMLA leave covers more than just time to recover from childbirth and to bond with the child. “FMLA leave may also be taken in order to care for the employee’s spouse, son or daughter with a ‘serious health condition,’ so if an eligible employee’s wife is experiencing pregnancy disability or other medical complications associated with pregnancy or childbirth that constitutes a serious health condition or the newborn child has a serious health condition, FMLA may be taken,” she says.

Are dads taking leave?
It takes more than a federal law to encourage many dads to take time off after having a child. A 2011 study by the Center for Work and Family at Boston College studied professionals and managers from large corporate employers and found that just one percent of the fathers in the study took more than four weeks off soon after having a child. Only one in 20 fathers took as much as two weeks off.

The study also found that a significant number of men in their sample used flexible work arrangements but mostly in an informal manner. The study says that the perception in many organizations is that using formal flexibility programs can be detrimental to a career. “This may have strong implications for employers who spend a great deal of time and effort focusing on formal flexibility programs and approaches,” the study says.

Yonahara says employers face potential legal threats if an employee is able to claim that the employer coerced him into staying at work instead of taking allowed time to spend with a new baby. “An employee may claim interference with FMLA leave rights or sex discrimination if an employer discourages men from taking advantage of parental leave policies or otherwise interferes with the employee’s FMLA rights,” she says.

Policy pointers
Employer policies on parental leave vary, and employers are allowed a lot of discretion as long as they follow the FMLA and any applicable state laws regarding parental leave says Teresa Shulda, a partner with the Foulston Siefkin LLP law firm in Wichita, Kansas. New mothers may be able to take a paid disability leave after childbirth under an employer’s short-term disability insurance plan, but if an employer offers paid parental leave for mothers unrelated to temporary disabilities, it should do the same for fathers.

With more men taking time off to bond with their child, employers need to guard against sexual stereotyping, Shulda says. “Employers need to be sensitive to stereotyping women as caregivers and men as breadwinners,” she says, “and not penalize men who take parental leave by way of job tasks, demotions, or even disparaging remarks.”

Such stereotyping can lead to an interference or retaliation claim under the FMLA or a sex discrimination or harassment claim under Title VII of the Civil Rights Act of 1964, Shulda says.

Yonahara’s advice to employers putting together parental leave policies includes making sure they follow the FMLA and any applicable state laws. For example, California has a separate California Family Rights Act and California Pregnancy Disability Leave law that must be followed by covered employers in addition to the FMLA.

Also, if an employer isn’t covered by the FMLA or wants to offer additional paid or unpaid benefits, Yonahara recommends that the employer have a pregnancy disability leave policy related to the medical necessity for leave associated with pregnancy, childbirth, breastfeeding, or related medical conditions and a separate parental leave policy for bonding with the child that applies equally to men and women.