As employers contemplate ways to stay ahead of the competition, boost employee morale, and enhance their diversity, equity, and inclusion (DEI) initiatives, many are debating between maternity and paternity leave or parental leave policies.
America is one of the only developed countries that doesn’t offer nationwide paid parental or family leave. The Family and Medical Leave Act (FMLA) covers up to 12 weeks of unpaid leave, which can apply to eligible new parents. And an increasing number of states are implementing paid family leave programs.
While many companies have historically provided longer maternity leave and shorter paternity leave, this could put employers at risk of a discrimination lawsuit.
With all this in mind, developing an inclusive policy can be challenging. So, should you use separate maternity and paternity leave or a parental leave policy?
Let’s take a closer look at the differences, how they work, and what is best for your organization and employees.
What are maternity leave and paternity leave?
Maternity leave is when a woman takes time off from work because she is about to give birth, has just had a baby, or has adopted a child. Paternity leave applies to men who adopt or have partners who have just had a child. Both aim to provide parents with bonding time with their new child.
Traditionally, employers have offered individual maternity and paternity leave policies to employees. However, more and more organizations are choosing a general parental leave policy.
What is parental leave?
Parental leave is a gender-neutral policy that provides employees of all genders time off to care for their children. A growing number of employers are choosing to implement general parental leave policies available to all caregivers within the first year of a child’s birth or adoption.
Some employers have even started offering both maternity or paternity leave plus parental leave. For example, a mother could take maternity leave and extend her time off with parental leave.
Countries around the world are leading the way in this employee-first trend. Find more parental leave inspiration.
What are the perks of parental leave?
Creating a thoughtful parental leave policy instead of individual maternity and paternity leave policies can help your company:
- Avoid discrimination claims and legal issues by offering the same amount of leave to all new caregivers
- Ensure inclusivity for all parents, regardless of their gender or if they’re birth or adoptive parents
- Maintain a straightforward, easy-to-administer benefit
- Strengthen employee morale
- Eliminate caregiver stereotypes/stigmas and reduce employees’ fear of taking family leave
- Attract and retain talent
At the end of the day, an inclusive parental leave benefit shows employees you value and care about them and their families.
What is pregnancy disability leave?
In addition to maternity leave, several states now have laws allowing employees to take leave for pregnancy disability, also known as pregnancy-related medical leave. This is included in the employer’s short-term disability insurance and typically gives mothers an additional six weeks (or eight weeks for a Caesarian delivery) for:
- Pregnancy complications
- Childbirth recovery and complications
- Related medical conditions
These laws vary from one state to the next.
Is parental leave paid or unpaid?
Many companies that offer maternity and paternity or parental leave often provide it unpaid. Employers that offer paid leave often provide a percentage of wages and/or allow employees to combine sick leave, vacation time, and short-term disability.
As mentioned earlier, more states are mandating paid family and medical leave (PFML) laws. These are typically either funded by employee-paid payroll taxes or a combination of employee and employer deductions.
So whether or not you provide paid or unpaid parental leave depends on your state’s requirements and what type of policy you choose.
How long should parental leave last?
Since there is no federal requirement regarding parental leave, this is usually up to the employer. Policies range from four to 12 weeks or more. Again, some states, like California and New York, now have paid family leave laws mandating employers to provide a minimum number of weeks of paid parental leave.
In addition to applicable state laws, you must ensure your parental leave policy is equal for male and female employees. If you offer longer maternity leave than paternity leave, you’ll be in violation of Title VII of the Civil Rights Act, which prohibits gender discrimination.
For example, a company may offer employees up to 10 weeks of pregnancy-related medical leave for pregnancy and childbirth. They may also offer new parents, regardless of gender, six weeks of parental leave. This is legal as both men and women receive six weeks of parental (i.e., bonding) leave, and women who give birth get an extra 10 weeks of leave for pregnancy and childbirth recovery.
What about adoptive parents?
Whether you opt for individual maternity and paternity leave policies or a gender-neutral parental leave policy, it must apply equally to both birth parents and adoptive parents.
To ensure your policy is legal, make it available to all parents, regardless of gender and whether or not they give birth.
How do multiple leave provisions work together?
So, what are your rights and responsibilities as an employer when it comes to employees combining different types of leave? Let’s look at a couple of scenarios.
Parental Leave + PTO
You can require employees to use vacation, sick time, or other PTO before taking paid parental leave or maternity leave (just be sure to apply this requirement for all types of medical leave). Be careful here—a too-strict policy could affect employee morale, so build in some flexibility if you go this route.
Parental Leave + FMLA
Most employers allow eligible employees to take parental leave concurrently with FMLA leave concurrently. This allows employees to extend their paid parental leave (whether under your policy or a state paid family leave program) with unpaid leave while typically keeping the 12-week total.
For example, if you (or your state) offer eight weeks of paid leave, employees could take four weeks of unpaid FMLA leave. You may also allow or require employees to use any available paid leave to cover their FMLA time.
FMLA protects employees by guaranteeing their job when their leave is over and ensuring their continued benefits coverage. Additionally, employers with 15 or more employees are subject to the Pregnancy Discrimination Act, meaning they can’t discriminate against employees based on pregnancy, childbirth, or related medical conditions.
Do What’s Best for Your Company & New Parents
Today’s top talent EXPECT family-friendly workplaces, and offering a generous, gender-neutral parental leave policy is a great place to start. Not to mention, it will help mitigate your risk of legal issues, improve employee engagement, and strengthen your brand image!
For more guidance on developing a thorough and competitive parental leave program, contact BlueLion today at 603-818-4131 or info@bluelionllc.com.
The information on this website, including its newsletters, is not, nor is it intended to be legal advice. You should contact an attorney or HR specialist for advice on your individual situation.
