March 29, 2019
Establishing Parental Leave Policies
by Brendan Feheley, Esq., Kegler Brown Hill + Ritter
More and more of today’s workforce consists of dual-income families, and this trend has changed the dynamic of parent/workers. Most employers currently have a policy on pregnancy leave, and many employers have begun to provide some form of paid leave to employees related to pregnancy and/or the birth of a new child. What employers need to realize, though, is their parental leave policies may be dangerously out-of-date.
Most employers know that moms qualify for the Family Medical Leave Act, but they need to be aware of the fact that the FMLA allows for unpaid leave for both parents to bond with their new child. Because of this, the issue of leave isn’t about time away from work, it’s about compensating the individual during time away from work.
When crafting a policy that includes paid time for parental leave, employers need to consider two different but related concepts. First, policies need to take into account the medical needs of the mother. This need only applies to the mother as, biologically, pregnancy is a medical condition that only impacts women.
Second, along with mom’s medical needs, policies need to account for bonding time between the new parent(s) and the baby. This need applies to both parents and is based on the adjustment time they need to adapt to and provide for the new human in their life. Paid leave associated with this need must apply to both parents, and when it doesn’t, employers run into trouble.
It is permissible to provide a woman with paid parental leave related to pregnancy that will necessarily not be available to a male employee who can’t get pregnant. In most cases, around six to eight weeks is required before a woman is medically recovered from childbirth. An employer can provide paid medical leave for all, none or some portion of that time without affording the same to its male employees.
However, the paid time off associated with the bonding between the parents and their new baby must be equal. This is because bonding time isn’t based on the medical condition. One-size-fits-all policies that offer differing amounts of leave between parents often violate the law because they fail to adequately distinguish between these two different types of leave.
It’s also important for employers to understand that while pregnancy does not count as a disability related conditions, like morning sickness or post-partum depression, can. When these conditions arise, it is important for employers to determine if an accommodation is necessary and reasonable.
In practice, parental leave policies often differ greatly depending on industry. Service-industry employers whose employees rely on tips for income will need different policies than a corporate employer whose employees’ entire compensation comes in the form of their weekly paycheck.
It’s not all doom and gloom, though. Your company has lots of options to create a parental leave policy that works for you; you just need to make sure you’re careful in how you do it.