June 12th, 2018
Sometimes referred to as “family leave” or “parental leave”, paternity leave is an excused absence from work to care for and bond with a new child - whether by birth, adoption, or foster. This leave can vary in duration and may be paid or unpaid.
Under the Family and Medical Leave Act (FMLA) employees of companies with a staff of 50 or larger are guaranteed twelve workweeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth. This leave is job-protected leave meaning the employee must return to the same (or comparable) position and same wages upon completing leave. The FMLA also requires group health benefits to be maintained during the leave.
The FMLA does not provide for any pay during leave, and there are currently no federal paid paternity leave requirements in the United States - making it the only industrialized nation in the world that does not require paid time off for new parents.
However, 25 states have amended the FMLA further to provide for longer leave or lowering the minimum employer size to below 50. Four of these states - California, New Jersey, New York and Rhode Island - require some form of paid family and medical leave. Additionally, individual cities (New York, Portland, Austin, Pittsburgh, San Francisco) are beginning to offer paid leave.
Under the FMLA, leave requests must be given at least 30 days advanced notice.
A 2015 Society for Human Resource Management survey found that less than 20% of employers offer paid paternity leave. With paid maternity leave still in a state of flux in the United States, paid paternity leave is a bit of wild card - as a result most fathers end up taking a paternity leave that is unpaid or a combination of cobbled-together vacation and sick leave.
As with most things in the world of employment law, it is advisable to have a clear paternity leave policy and enforce it evenly. With many employees bringing claims under the Equal Employment Opportunity Commission (EEOC), employers should consider adding paternity leave policies equal to or similar to maternity leave policies to avoid potential litigation.