Netflix. Google. Proctor & Gamble. Accenture. IKEA. Greensboro, North Carolina. What do these have in common?

They are employers.

And they offer their employees paid parental leave.

As I reflect upon the year 2016 (picture me meditating in my hyperbaric FMLA chamber I retreat to every evening), I’ve been poked and prodded about one question seemingly more than any other these past 12 months: “Jeff, how many of your other clients are offering paid parental leave?”  Of course, the second question closely follows (in a hushed voice):  “Ummmm . . . can you help us draft a parental leave policy?”

I’m no gumshoe, but the evidence is mounting. By the hundreds, even thousands, American employers in 2016 have added paid parental leave to their overall benefits package. I can tell this is true simply by the number of questions my clients pose about parental leave.  (See above.)  To be clear, there is plenty to be gained by adopting a parental leave policy — boosting employee morale, showing a commitment to work/life balance, improving your recruitment of the best candidates. More importantly, maybe it’s simply the right thing to do. But this is just a blog post. It’s not meant to be some lengthy political statement, though I admit that I look forward to a day when I can laugh with my sons and daughters about the fact that our country actually haggled over paid parental leave at one point in its history.

Put politics aside for the moment (in all candor, there are arguments to be made on either side), the reality is that parental leave is picking up steam, and if I might humbly add my two cents to my dear employers: Don’t be left behind.  

I now dispose of any additional political rants, and simply offer a few nuggets you might consider (by no means exhaustive) to ensure your parental leave policies are up to snuff:

  • You choose Eligibility Requirements, not some Federal agency. Employers have the right to set eligibility for parental leave benefits. You don’t need to provide these benefits on day one of employment. You can require some period of service before accrual, as you likely do with other employment benefits.
  • Moms vs. Dads. You can treat women who give birth better than men. Really, you can. And you should. After a woman has carried a child in the womb for nine months, endured the painful throes of childbirth, and now needs time to recover, doesn’t it make sense that she deserves more time off after childbirth than, say, the guy holding her hand during the delivery? Me thinks so. Based on its June 2015 pregnancy discrimination guidance, the EEOC agrees.  (See example 14 in the guidance.)
  • But let’s not get too crazy about Moms vs. Dads. Although the EEOC makes clear that you can treat mom better than dad when it comes to recovery from childbirth, employers cannot treat the sexes differently when it comes to bonding leave.  In its pregnancy discrimination guidance, the EEOC makes clear: “for purposes of determining Title VII’s requirements, employers should 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.” If you provide paid parental leave to female employees for bonding with a newborn, as opposed to leave provided as a result of pregnancy-related conditions (e.g., pregnancy, childbirth or related medical conditions), it must provide the same leave to men or risk a gender discrimination claim. The logic behind the EEOC’s position is clear—dads need lovin’ too.
  • “Busy” parents don’t get extra! Might you want to consider a provision that limits benefits in the event of multiple births or adoptions in the same 12-month period?  Crazier things have happened, and you have every legal right to limit the benefit over a period of time.
  • Exhausting other paid leave prior to parental leave is legal. Employers can require employees to use vacation/sick/PTO benefits before collecting parental leave pay.  The same could be said for maternity leave benefits, as long as you maintain the same requirement for employees absent for other types of medical conditions.  That said, consider employee morale here and think about allowing employees to “hold back” a few of their accrued paid leave days so they can use them later in the year (again, all in the name of work/life balance).
  • Run FMLA leave concurrently with parental leave. Just do it. You have a legal right to do so. ‘Nuff said.
  • Primary caregiver provisions, anyone?  Ay de mi — the plot thickens! Some policies I’ve drafted include additional leave for the “primary” caregiver in the family. These provisions are fine, too, but I strongly encourage you to work with employment counsel to ensure you’re covering all the angles. [If you need an employment attorney, ahem, I know one.]

No disrespect to the above considerations, but there is one rule that trumps all the others.  Make parental leave more than mere lip service. After you draft the parental leave policy, and your attorneys give it the final blessing, your employees need to know parental leave is a benefit they actually can take and still move up within your organization. Senior leaders should set the example to ensure that employees feel comfortable taking leave and understand that doing so will not affect their careers.

Otherwise, this goodness above is all for naught.


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