The U.S. is one of the only countries in the world without a federally mandated paid parental leave policy. This gap has motivated many states to take matters into their own hands, creating their own statewide paid family and medical leave (PFML) laws, which typically include parental leave (bonding with a new child) but also additional absences from work due to common life events such as a serious illness or to care for a sick family member. Similarly, individual companies often have their own parental leave offerings, knowing that it is critical to a successful employee attraction and retention strategy. 

In years past, the focus was on the mother’s access to maternity leave, and any paternity leave offered was perceived as a “bonus.” However, modern assessments of equity and discrimination should have employers reassessing how their parental leave programs are framed, especially given guidance recently released by the Equal Employment Opportunity Commission (EEOC).

What You Need to Know

• Under FMLA, both new mothers and fathers can take leave, and no gender is favored regarding duration of leave or other factors. Employers are legally prohibited from rejecting parental leave requests based on gender, and also from terminating employment due to a paternity or maternity leave under the FMLA. Please note that not every worker is eligible for FMLA – you can see eligibility provisions here.
• Title VII of the Civil Rights Act of 1964 prohibits employer discrimination on the basis of race, color, religion, sex, or national origin when providing family or medical leave. Under Title VII, if an employer allowed a woman to take leave to care for a newly born, adopted, or placed child, but did not offer the same leave to a man in the same situation, that would constitute discrimination based on gender.
• Additional leave may be offered due to medical complications from pregnancy or labor. This type of leave is admissible to be only offered to those who are child-bearing, but this leave should be viewed as a medical leave of absence, not maternity or parental leave. 
  • Under the Pregnant Workers Fairness Act ( PWFA), a new law that goes into effect on June 27, 2023, workers have the right to “reasonable accommodations” for pregnancy, childbirth recovery, and related medical conditions, including lactation, unless it would create an undue hardship on the employer. Accommodations may include additional breaks, ergonomic enhancements, or schedule changes. The new law closes a gap in that the worker does not need to have a pregnancy related-disability to be afforded accommodations, and it applies to both pre-and post-labor. The PWFA will apply only to those who give birth or have given birth, and offers accommodations, not leave.
• State PFML laws also do not discriminate against gender. This means  that leave for bonding with a new child must be the same for mothers and fathers, with the same level of pay and other provisions which vary by state.
• Corporate policies must keep durations for bonding consistent and avoid terminology that separates benefits based on gender or implies a gender bias (i.e., primary vs. secondary caregiver).

Parental leave is a key example of how employers can ensure they are putting their diversity, equity, and inclusion (DEI) values to work. Recent guidance, legislation, and general buzz around this topic make it a prime time to ensure that your programs are compliant. Please get in touch if you should have any questions about leave laws or best practices in this area.