(Avoiding) The Top Five Mistakes Employers Make Regarding New Parent Leave Policies

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Miller & Martin PLLC

With the U.S. Supreme Court recognition of same-sex marriage back in 2015 and increasing EEOC scrutiny regarding employers’ pregnancy accommodation policies and practices as well as gender discrimination, your new parent leave policy may have issues you have never considered, such as using now taboo policy terms such as “maternity” and “paternity.”

Here are the top 5 mistakes we see in such policies.

  1. Providing more leave to female employees than to male employees (with no explanation as to why or with the wrong explanation!)

It is not illegal to provide additional leave to female employees who give birth to a child. However, this is the only permissible reason you can do so in the context of providing “new parent leave.” And even then, you need to explain in your policy that the reason for the additional leave is to “assist with recovery from childbirth, pregnancy, and/or nursing” so as to be able to avoid or defend against gender discrimination charges and claims.

  1. Not reflecting the stated reason for additional leave for female employees in the leave approval process (which then makes it look “made up” or pretextual)

So, assuming you got past “mistake #1” because you have explained in your policy why female employees who give birth to a child receive more leave under your new parent leave policy than everyone else, be sure your “actions also are matching your words,” in that you are requiring female employees who give birth to a child to provide medical documentation to support the period they are incapacitated/unable to work due to “childbirth, pregnancy, and/or nursing.”

FMLA paperwork may or may not be sufficient here, as remember, all employees who qualify for FMLA leave can take up to 12 weeks of FMLA leave for new child bonding. So, for this reason, most physicians do not go into detail in FMLA paperwork as to what period a female employee will need to be off due to “incapacity” versus in order to bond with the child. Accordingly, you may need to request additional paperwork to support her request for “new parent leave” so as to be able to show, again by both your actions and your policy/words, that you are only giving female employees “extra leave” or “paid leave” due to the period they are incapacitated/unable to work due to “childbirth, pregnancy, and/or nursing.”

As a side note, it is fine (and in fact recommended!) to run FMLA leave concurrently with your new parent leave. As noted in “mistake #4” below, your new parent leave policy actually should state how FMLA leave and this “company-provided leave” interact, so employees do not erroneously believe they can use FMLA leave then new parent leave or vice versa if this is not your intent.

  1. Not being aware of applicable local or state laws and/or not applying them correctly

Most Tennessee employers do not realize how unique Tennessee’s own Maternity and Adopted Child Care Leave law (TMACCA) (T.C.A. § 4-21-408) is. Specifically,

a. Unlike FMLA leave, TMACCA leave cannot be used intermittently.

b. It also can only be used by female employees who give birth or adopt (and male employees who are adopting a child), as, again, unlike the FMLA, it only covers “pregnancy, child birth, nursing, and adoption,” not newborn child bonding. (The adoption leave also cannot be used until after the child is placed with the employee, whereas FMLA leave can be used for pre-adoption meetings, legal and medical proceedings, etc.)

c. It only covers Tennessee employers who have at least 100 employees at one location in Tennessee.

d. It can last up to four months rather than only 12 weeks as under the FMLA. (You may run TMACCA leave concurrently with FMLA leave if both types of leave are applicable to the employee’s leave. Please note difference “a.” above on this point, however.)

e. Employees must be full-time (as you define this term) and have worked for you for at least one continuous year in order to be eligible for TMACCA leave.

f. They also must give three months’ notice of the need to use TMACCA leave (unless this is not possible).

So, if you are a Tennessee employer who is covered by this unique Tennessee law, you also need to describe how this type of leave interacts with your company-provided new parent leave, so employees again do erroneously believe they can “stack” the two if this is not your intent.

  1. Not stating in the policy how FMLA leave and other applicable laws will interact with the company’s policy

Hopefully this is self-explanatory. Bottom line, if you do not intend for the company’s new parent leave policy to “expand” the total amount of leave an employee is provided by applicable federal, state, and local law, you need to state this. Otherwise, employees may try to “stack” FMLA or other types of leave “on top of” your company-provided new parent leave.

  1. Not giving practical thought as to which employees you want to be eligible for this benefit and/or how you want employees to be able to use it

New parent leave (particularly if it is paid!) is not required by law in most states (if it is in your state, please see “mistake #3” above; you may decide to follow that law rather than implementing your own separate policy, as having your own policy may not be necessary in light of an already generous state law). Accordingly, you can make this manufactured benefit apply to whomever you as an employer wish (as long as your choice does not violate any other laws such as Title VII as noted in “mistake #1” above).

So, in implementing such a policy, consider:

Do you really want ALL employees to qualify for this benefit? OR only those who qualify for FMLA or other leave which is required by applicable state or local laws? AND/OR only those who have been employed with you for at least six months, etc.?

Do you want it to apply to adoptive and/or foster parents as well?

Also, be mindful of the fact that in light of the national recognition of same-sex marriage and other couples having or adopting children, you may not want to use the term “paternity” leave at all to refer to leave taken by “the spouse or other parent of the child who did not give birth to it.” You may want to refer to this leave using a more gender-neutral term as we have above such as “new parent leave” or “maternity and child bonding leave” (the former, again, only if you are planning to provide additional leave to those who give birth to a child). Be mindful that if you do choose to provide extra “maternity” leave for those who give birth to a child, you also will need to specify whether the parent giving birth to the child also will be able to use the “new parent” or “child bonding” leave in addition to “maternity/childbirth/pregnancy/nursing recovery leave” or whether these types of leave will run concurrently with their “new parent/child bonding” leave.

Another consideration is whether you want the company’s new parent leave to be able to be used on an intermittent basis or only continuously. (Be mindful regarding “mistake #4” above that this may inadvertently impact whether your new parent leave truly “interacts” or “runs concurrently” with FMLA and/or other applicable types of legally-required leave. As again, in Tennessee, TMACCA leave cannot be used intermittently. FMLA leave also can be restricted from being used intermittently to bond with a healthy newborn or newly adopted or foster child.)

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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