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Parental Leave Policies – What to Know and What to Consider
October 31, 2019
Parsons Behle & Latimer Legal Briefings


With the rise of generous parental leave policies from tech companies, the pressure is on for employers in all industries to consider and implement policies that allow their employees time to bond with a new child. While current federal law in the United States does not require employers to offer paid parental leave, the trend is edging that way. Ivanka Trump and Alexandria Ocasio-Cortez both recently tweeted about paid parental leave being a priority for them. Given the rise in popularity and political interest, employers must be ready to adapt and adopt appropriate parental leave policies for their companies.

What is parental leave? The period of time an individual stops working because the individual is about to welcome or has just welcomed a child. This leave covers both men and women, applies to adoption; applies to birth; and can apply to foster or surrogacy situations.

When considering a parental leave policy, it is important for employers to know that a variety of local and national laws can come into play when adopting and implementing such a policy (i.e., the Americans with Disabilities Act, Family Medical Leave Act or Title VII of the Civil Rights Act, to name a few). Employers should be aware of the laws applicable to their business – including the laws of multiple jurisdictions if the business operates in numerous different locations. For example, while federal law (and most state laws) do not require an employer to provide paid parental leave, as of January 2020, five different states (California, New Jersey, Rhode Island, New York and Washington) will require some sort of paid leave for parents.

The current hot issue for employers who have parental leave policies is the equal application and implementation of the policy across employees. Under Title VII of the Civil Rights Act, an employer cannot discriminate against its employees by giving men or women different amounts of parental leave solely because of their sex. In June 2015, the Equal Opportunity Employment Commission issued pregnancy discrimination guidance for employers that specified that “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.” That is, leave related to pregnancy, childbirth or medical conditions related to pregnancy or childbirth can be limited to women affected by those conditions. But parental leave to bond with or care for a child must be given to men and women on the same terms.

For example, if an employer gives its employees 10 weeks of unpaid parental leave, the employer must allow men and women welcoming a new child, whether by birth, adoption, or surrogacy, the same amount of leave for bonding with and care of the child. However, the hypothetical employer may also allow a female employee who gave birth to take an additional two weeks of leave to recover from the physical trauma of childbirth. To discuss parental leave policies in your state, or other employment-related issues with Liz Mellem, call (801) 532-1234 or send an email to lmellem@parsonsbehle.com.

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