As American tech companies continue to offer generous parental leave policies, the pressure increases on employers in other industries to consider and implement policies that allow employees time to bond with a new child. Although current federal law doesn’t require employers to offer paid parental leave, the trend is edging that way.
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Ivanka Trump and Alexandria Ocasio-Cortez both recently tweeted about paid parental leave being a priority. Given the rise in popularity of such leave and the political interest in the issue, employers must be ready to adopt appropriate parental leave policies.
Both Men and Women Are Eligible
Parental leave is the period of time when employees stop working because they are about to welcome or have just welcomed a child. Both men and women may take parental leave for the adoption or birth of a child, or in foster or surrogacy situations.
When you’re considering a parental leave policy, it’s important to understand that a variety of local and federal laws may come into play. For example, employees may challenge an employer’s parental leave policy under federal laws like the Americans with Disabilities Act, the Family and Medical Leave Act, and Title VII of the Civil Rights Act of 1964. Be aware of which laws apply to your organization, including whether you’re subject to the laws of multiple jurisdictions because you have operations in several different locations.
As I noted above, federal law doesn’t require employers to provide paid parental leave. And although most state laws also don’t mandate parental leave, five states—California, New Jersey, New York, Rhode Island, and Washington—will require some sort of paid leave for parents as of January 2020.
Hot Topic: Do Policies Apply Equally?
The current hot topic for employers that do have provide parental leave is whether their policy applies equally across the workforce. Under Title VII, an employer cannot discriminate against employees by providing different amounts of parental leave solely on the basis of sex.
In June 2015, the Equal Employment Opportunity Commission issued pregnancy discrimination guidance in which it specified that “employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave for purposes of bonding with a child and/or providing care for a child.”
In other words, leave taken because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth can be limited to women affected by those conditions. But parental leave to bond with or care for a child must be offered to male and female employee on the same terms.
For example, if you give employees 10 weeks of unpaid parental leave, you must allow male and female employees who welcome a new child by birth, adoption, or surrogacy the same amount of leave to bond with and care for the child. However, you may also allow a female employee who gave birth to take an additional 2 weeks of leave to recover from the physical trauma of childbirth.
Liz M. Mellem is an attorney in the Missoula (Montana) office of Parsons Behle & Latimer. If you would like to discuss parental leave policies or other employment-related issues with Liz, you may reach her at lmellem@parsonsbehle.com.