As More Companies Offer Paid Parental Leave, They Should Take Care To Avoid One Potential Pitfall

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The recently enacted America Rescue Plan made several changes to federal policies affecting parents.[1]  A number of lawmakers, moreover, have introduced other bills aimed to make additional changes.[2]  At the same time, many observers are predicting a Covid-19 baby bust.[3]  Brookings Institute predicted 300,000 fewer births due to the pandemic.[4]

Regardless of whether the government overhauls its approach to family policy or the birth rate declines (or both), prospective parents place a premium on their companies’ leave policies.  An article in Insider recently looked at a survey indicating higher levels of retention at companies with more generous leave policies.[5]  Companies considering either changing their existing parental leave policies or adding news ones, however, should be aware of the current state of the law and its allowance for different treatment of birth mothers and other parents.

The Equal Employment Opportunity Commission (EEOC) guidance addresses this issue.  Per this guidance, the EEOC recommends that employers “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.”[6]  While the former would naturally apply to birth mothers, the latter may also be applicable to other new parents.  According to EEOC guidance, it is not necessarily discriminatory for an employer to grant a longer total period of parental leave to birth mothers because this leave includes time for a birth mother to recover from physical limitations imposed by pregnancy and childbirth in addition to childcare and bonding time.  At the same time, the EEOC cautions that leave for bonding should be “provided to similarly situated men and women on the same terms.”

In a recent class action lawsuit filed in an Ohio federal court, a group of male JP Morgan Chase employees alleged that the company’s paid parental leave policy discriminated against new dads.  Specifically, they alleged that the company’s parental leave policy that provided up to sixteen weeks of parental leave to primary caregivers and only up to two weeks to non-primary caregivers was discriminatory because it presumed that birth mothers were primary caregivers.[7]  Under the policy, fathers were presumed to be non-primary caregivers.  While the case was pending, the company changed its policy to allow either parent to be the primary caregiver.  The ultimate settlement required a continuation of a gender-neutral leave policy and 5 million dollars to class members.  In other cases, an important issue was the legitimacy of the distinction between medical leave for a pregnancy-related disability and parental leave for bonding, and whether the former, even if the policy presumed a disability without documentation for birth mothers, was simply extended bonding time for birth mothers.[8]

This post does not endeavor to discuss the state and federal laws mandating job-protected leave, nor does it address state-provided paid leave, such as Rhode Island’s use of Temporary Disability Insurance or Massachusetts’ recently enacted Paid Family and Medical Leave program.[9]  As employers re-evaluate workplace policies in a post-pandemic world (including those that provide for a more flexible work environment for working parents),[10] they should carefully consider how (or if) they draw distinctions between classes of employees.

[1] The American Rescue Plan included direct payments to qualifying individuals for dependents, changes to tax credits related to children and dependent care, and an extension of the deadline for the Families First Coronavirus Response Act (FFCRA).  My colleague Ali Khorsand, Esq., wrote about the FFCRA here.

[2] Prior to the American Rescue Plan’s passage, for example, Senator Mitt Romney of Utah proposed a plan to send monthly payments to families in lieu of several other benefits.  See Jeff Stein, Mitt Romney unveils plan to provide at least $3,000 per child, given bipartisan support to President Biden’s effort, Washington Post, Feb. 4, 2021, https://www.washingtonpost.com/us-policy/2021/02/04/romney-child-benefit-stimulus/.

[3] See, e.g., Margherita Stancati, The Covid-19 Baby Bust Is Here, Wall Street Journal, Mar. 5, 2021, https://www.wsj.com/articles/the-covid-19-baby-bust-is-here-11614853803.

[4] Melissa S. Kearney and Phillip B. Levine, The Coming COVID-19 baby bust:  Update, Brookings, Dec. 17, 2020, https://www.brookings.edu/blog/up-front/2020/12/17/the-coming-covid-19-baby-bust-update/.

[5] Marguerite Ward, One chart shows why more companies should invest in paid parental leave, Insider, Dec. 2, 2020, https://www.businessinsider.com/data-great-place-to-work-maven-paid-parental-leave-benefits-2020-12.

[6] Enforcement Guidance on Pregnancy Discrimination and Related Issues, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues#IC2.

[7] Rotondo v. JPMorgan Chase Bank, N.A., No. 2:19-CV-2328, 2019 WL 6167086, at *1 (S.D. Ohio Nov. 20, 2019), report and recommendation adopted, No. 19-CV-02328, 2019 WL 6496806 (S.D. Ohio Dec. 2, 2019).

[8] See, e.g., Johnson v. Univ. of Iowa, 431 F.3d 325, 328–29 (8th Cir. 2005) (affirming summary judgment in a case involving a policy presuming six weeks of disability for birth mothers and stating that “the primary question for us to consider is whether the leave given to biological mothers is in fact disability leave”); Savignac v. Jones Day, 486 F. Supp. 3d 14 (D.D.C. 2020) (denying a motion to dismiss to allow development of factual record regarding whether disability portion of overall leave policy was “a substitute for an extended period of parental leave for birth mothers”).

[9] AP&S wrote about Massachusetts’ policy in a post by Siobhan Surette, Esq., here.

[10] Bobbi Thomason & Heather Williams, What Will Work-Life Balance Look Like After the Pandemic?, Harvard Business Review, Apr. 16, 2020, https://hbr.org/2020/04/what-will-work-life-balance-look-like-after-the-pandemic.

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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