Paternity Leave Up To Bat: What Employers Should Know To Avoid Striking Out

Paternity leave is back in the spotlight after New York Mets second baseman, Daniel Murphy, decided to take his contractually guaranteed three days of paternity leave for the birth of his son—a decision which resulted in his absence from two games, including the season opener. Public criticism of Murphy’s paternity leave sparked a media controversy and has left many employers wondering what type of parental leave options (if any) they are required to offer to new dads. The following questions and answers provide guidance on the requirements pertaining to paternity leave under federal and state laws.

Are employers required to provide paternity leave under the Family Medical Leave Act (“FMLA”)?

An employer must provide 12 weeks of unpaid paternity leave after the birth or adoption of a child if:

  • the employer is a “covered employer” under the FMLA (50 or more employees in 20 or more workweeks in the current or preceding calendar year); and
  • the employee is otherwise eligible for leave under the FMLA (the employee has worked for the employer for at least 12 months; has at least 1250 hours of service for the employer during the 12-month period immediately preceding the leave; and works at a location where the employer has at least 50 employees within 75 miles).

May an employer deny paternity leave under the FMLA if the employee meets the latter eligibility requirements? 

Under limited circumstances where restoration to employment will cause “substantial and grievous economic injury” to its operations, an employer may refuse to reinstate certain highly-paid, salaried “key” employees. In order to do so, the employer must notify the employee in writing of his status as a “key” employee (as defined by the FMLA), the reasons for denying job restoration, and provide the employee a reasonable opportunity to return to work after so notifying the employee.

What if both parents work at the same company?

If both parents work at the same company, the FMLA only requires the employer to offer a combined 12 weeks of parental leave between the two parents.

If an employer offers paid maternity leave, must the employer also offer paid paternity leave?

Yes; the law requires that any such paid leave that is offered to a female for the birth and caring of a newborn child must also be offered to male employees. Note that this leave must include some child-caring capacity. If the leave is purely for the birth of the child or incapacitation due to pregnancy, it may be offered to females alone.

Which states have laws that require an employer to provide unpaid paternity leave (separate from the requirements under the FMLA)?

Even though an employee may not qualify for paternity leave under the FMLA, state law may require the employer to provide unpaid family leave when certain factors are met.  Alternatively, an employee may qualify for both FMLA leave and state family leave (the leaves may run concurrent depending on the state statute). The following states require employers to provide unpaid family leave for the birth or adoption of a child:

  • California requires private employers with 50 or more employees (and all public sector employers) to provide up to 12 weeks of unpaid family leave to bond with an adopted child, foster child or newborn. To qualify, an employee must have worked for an employer for at least 12 months, and must have 1250 hours of service during the 12 months prior to the leave. California also provides up to 40 hours of leave per year (but no more than eight hours per month) to participate in children’s educational activities.
  • Connecticut requires all employers with 75 or more employees (except private or parochial elementary or secondary schools) to provide up to 16 weeks of unpaid leave in a two year period for the birth or adoption of a child or placement of a child for foster care. To qualify, an employee must have 1000 hours of service with an employer during the 12-month period before the leave.
  • District of Columbia requires all employers to provide up to 16 weeks of unpaid family leave in a two year period. To qualify, an employee must have at least 1000 hours of service with an employer during the 12-month period prior to the leave. The family leave must be shared by family members working for the same employer. Further, the District of Columbia requires an employer to provide an employee up to 24 hours per year of school-related parental leave to participate in children’s educational activities.
  • Hawaii requires private employers with 100 or more employees to provide up to four weeks of unpaid leave per year for the birth or adoption of a child. The leave may be intermittent. To qualify, an employee must have worked for the employer for six consecutive months.
  • Illinois requires all employers to provide up to eight hours of leave per school year (but no more than four hours on any day) to attend a child’s school activities (and only when no other type of employee leave is available) pursuant to the Small Necessities Leave Act. To qualify, an employee must have worked for the employer for six consecutive months and the employee’s weekly hours during that time must have averaged at least one-half of a full-time equivalent position.
  • Louisiana requires all employers to provide up to 16 hours of leave per year (at the employer’s discretion) to participate in children’s educational activities. The law allows an employee to use any type of accrued leave to participate in his or her children’s educational activities.
  • Maine requires private employers with 15 or more employees, all state employers, and local governments with 25 or more employees to provide up to 10 weeks of leave in two years for the birth of a child or adoption of a child age 16 or younger.
  • Massachusetts requires employers with 50 or more employees to provide up to 24 hours of leave per year to participate in children’s educational activities or accompany a child to routine medical appointments.
  • Minnesota requires all employers with 21 or more employees to provide up to six weeks of leave for the birth or adoption of a child. To qualify, an employee must have worked for an employer for at least 12 consecutive months immediately preceding the request, and the employee’s average number of hours per week must equal one-half of a full-time equivalent position. Further, Minnesota requires all employers who have at least one employee to provide up to 16 hours of leave per year to participate in children’s educational activities.
  • Nevada law makes it unlawful for any employer to terminate an employee for attending school conferences or for receiving notification of a child’s emergency at work.
  • New Jersey requires all employers with 50 or more employees to provide unpaid leave of up to 12 weeks in 24 months (not to exceed more than six weeks in 12 months) to care for a child anytime during the first year after that child’s birth or adoption. The law limits intermittent leave to 42 days in 12 months. To qualify, an employee must have worked for an employer for 12 months and must have at least 1000 hours of service during those 12 months. The law also provides that any paid family leave runs concurrently with this leave.
  • North Carolina requires all employers to provide any employee (who is a parent, guardian, or person standing in loco parentis of a school-aged child) up to four hours of leave per year to participate in children’s educational activities.
  • Oregon requires all employers with 25 or more employees to provide up to 12 weeks of unpaid leave per year. The law provides an additional 12 weeks of leave per year to care for the employee’s ill or injured child who does not have a serious health condition but who requires home care. The law prohibits two family members working for the same employer from taking concurrent family leave except under certain conditions. The law allows an employee to substitute any available paid vacation or sick leave. To qualify, an employee must have worked at least 25 hours per week in the 180 days preceding the request.
  • Rhode Island requires private employers with 50 or more employees, all state government employers, and local governments with 30 or more employees to provide up to 13 weeks of leave in two years for the birth or adoption of a child age 16 or younger. The law covers full time employees who have been employed for 12 consecutive months and who work an average of 30 or more hours per week. Rhode Island also requires employers to provide up to 10 hours of leave per year to participate in children’s educational activities.
  • Vermont requires all employers with 10 or more employees to provide up to 12 weeks of leave in 12 months for leave associated with a new child or an adoption. The law allows the employee to substitute available sick, vacation, or other paid leave, not to exceed six weeks. The law provides an additional 24 hours in 12 months to attend to the routine or emergency medical needs of a child or to participate in children’s educational activities. The law limits the latter additional leave to no more than four hours in any 30-day period. To qualify, an employee must have worked for an employer for one year for an average of 30 or more hours per week.
  • Washington requires all employers to provide up to a total of 12 weeks of leave during any 12 month period for the birth of a child or the placement of a child for adoption or foster care. To qualify, an employee must have been employed for at least 1250 hours during the previous year. The Washington Family Care Act allows workers with available paid sick leave or other paid time off to use that leave to care for a sick child with a routine illness and an adult child with a disability.
  • Wisconsin requires employers who employ at least 50 individuals on a permanent basis (including any state government entity) to provide up to six weeks of leave for the birth or adoption of a child and up to two weeks of leave to care for a child with a serious health condition. The law allows an employee to substitute employer-provided paid or unpaid leave for portions of family or medical leave. To qualify, an employee must have been employed by the same employer for more than 52 consecutive weeks and have at least 1,000 hours of service during that time.

Which states offer paid paternity leave benefits?

  • California: The California Paid Family Leave insurance program provides up to six weeks of paid leave to care for a seriously ill child or to bond with a new child. The benefit amount is approximately 55% of an employee’s weekly wage, from a minimum of $50 to a maximum of $1067. The program is funded through employee-paid payroll taxes and is administered through the state’s disability program.
  • New Jersey: Under the Family Leave Insurance provision of the New Jersey Temporary Disability Benefits Law, cash benefits may be payable for up to six weeks to bond with a newborn or newly adopted child. An employee is entitled to up to 2/3 of wages (up to $524/week) for six weeks. Any paid family leave runs concurrently with FMLA or unpaid leave under the New Jersey Family Leave Act and other types of available leave must be used before taking paid family leave.
  • Rhode Island: The Rhode Island Temporary Caregiver Insurance Program provides four weeks of paid leave for the birth, adoption or fostering of a new child. The program is funded by employee payroll taxes and administered through the state’s temporary disability program. It provides a minimum benefit of $72 and maximum of $752 per week, based on earnings. The program covers all private sector employers and public sector employers who opt into the program.

Topics:  Employee Benefits, Employee Rights, FMLA, Maternity Leave, Paid Leave, Parental Leave, Paternity, Unpaid Leave

Published In: Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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