Starting and growing your family is an exciting time, and the last thing an employee should worry about is how to take time away from work for life events such as this. Employers should develop a policy before these questions arise.
It is common for employees to assume they will get a certain amount of time, either paid or unpaid, away from work. What a business is required to offer is typically dependent on its size. As an employer, you should be prepared to share this information when an employee announces they are adding another member to the family. The options include: FMLA, parental leave, medical leave or a combination.
FMLA is the federal Family Medical Leave Act, which applies to employers of 50 or more. FMLA requires employers to provide up to 12 weeks of time off for the birth or placement of a child for adoption or foster care. FMLA protects the employee’s job and benefits but does not require an employer to pay the employee for the time they are away. If unpaid, employees may be able to use vacation/PTO time or collect from their short-term disability benefit (if applicable). FMLA applies to both parents for the purpose of bonding with the child as well as giving a mother time to recuperate from labor and delivery. FMLA is clearly outlined for employers and can be found online here: https://www.dol.gov/general/topic/benefits-leave/fmla.
The term “maternity leave” was commonly used to describe the time a mother needed off after the birth of a child. The term is outdated, as an employer cannot discriminate against the other parent for the purposes of taking time off. The Pregnancy Discrimination Act (PDA) also requires pregnancy to be handled as if it were like any other medical leave.
The compromise and appropriate nomenclature is “parental leave,” which is a set period of time an employer allows an employee to be off work for the birth or placement of a child. It is simply describing a period of time, not the medical needs for a woman to be off following labor and delivery. A parental leave may include wage replacement, such as paying part or all of the employee’s wages while off work, or it may be unpaid. Just like FMLA, a parental leave is not required to be paid, but some employers may choose to do so.
The U.S. Equal Employment Opportunity Commission (EEOC) recently ruled in favor of a new father in a case of parental leave discrimination. This new dad received a $1.1M settlement, and not giving new fathers the same type of leave as new mothers to bond with a child can result in a claim such as this.
Medical leave allows for an employee to be off work for a medical condition. This includes time off after childbirth for a woman who had a baby. Labor and delivery would fall under a medical leave policy, but bonding time is not. The woman’s doctor provides information about the length of time a patient needs to be off of work and this would be handled in the same fashion as an employee undergoing major surgery who is off due to a doctor’s order. Employers may choose to have a medical leave policy instead of offering parental leave, or they may have both.
FMLA is the set of federal regulations, but an employer can always choose to be more generous. If your Medical Leave Policy goes above and beyond FMLA, then your handbook can include just the Medical Leave Policy on its own and not include a separate FMLA policy.
It is surprisingly more complicated when an employer isn’t required to follow a federal regulation and if they also don’t have a policy in place. In these cases, employees in similar situations may, unintentionally, be treated differently. That is considered discriminatory, which is why it is imperative to create a policy and follow it. Having a policy also avoids an awkward conversation when an employee approaches an employer with a leave request.
BCN handles all types of employee leaves for its clients and can assist in policy creation. Please talk to your Human Resources representative and let them know if you have any questions about the types of leaves listed above or any other type of employment leave.