With the increase in the number of states that require various types of paid leave, now is a good time to examine your leave policies.  While often overlooked, one policy that could expose an employer to liability is its maternity leave or parental leave policy. 

 As the EEOC’s Guidance on Pregnancy Discrimination and Related Issues makes clear, leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions.  However, to the extent that the employer is providing leave for purposes of bonding with or providing care to a child, that “must be provided to similarly situated men and women on the same terms.” 

The risk arises in an employer policy that does not make a distinction between medical-related leave and leave for child bonding or child care, yet provides greater leave time entitlement to female employees than male employees.  One example is a policy that simply provides twelve weeks to female employees for “maternity leave” and two weeks to male employees for “paternity leave.”  Another example is a maternity leave policy that provides no leave to male employees.  Such policies could prompt the EEOC or a state civil rights agency to come knocking.

In light of the EEOC’s guidance and as a best practice, employers should use appropriate terminology in their policies to distinguish between leave related to any medical conditions or physical limitations imposed by pregnancy or childbirth, including recovery from childbirth (medical/maternity leave) and leave for purposes of child bonding or care (bonding time/parental leave).  If the term “maternity leave” is used, it should be defined in the policy.  Further, it should be clear in the policy that non-medical parental leave is being provided equally to women and men.  Employers should also ensure that their parental leave policy is consistent with any legal obligations under the Family and Medical Leave Act and state law.