Paternity Leave

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There is no right to paid paternity leave in the United States.

There is a federal law – the Family and Medical Leave Act (FMLA) -- which provides many employees unpaid paternity leave. However, the law does not cover all employees—those working for smaller businesses, new employees, and many part-time employees are not covered by FMLA. Unless a worker is eligible to take unpaid leave under FMLA, he would only have a right to paternity leave if

(1) he has a written employment contract guarantying him this leave;

(2) the employer has voluntarily adopted policies giving employees paternity leave; or

(3) his state has laws guarantying paternity leave.

The Family and Medical Leave Act and Paternity

While mothers are afforded certain rights on the federal level by both the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act, only the FMLA extends its protections to new fathers.

If the FMLA applies, a new father can take up to 12 weeks of unpaid time off from work when a baby is born. His employer may not fire him, alter his position in a negative way (he could be transferred to an equivalent or comparable position, however), or otherwise change the terms or conditions of his employment to his detriment or disadvantage as a result of the father choosing to take paternity leave.

Under the FMLA, a father generally may take time off in either a single extended leave or, in certain cases, in the form of “intermittent” leave where he takes time off periodically at predetermined times in order to care for his partner or his infant. An important point is that fathers are eligible to take this time off both when their partners give birth or when a child is adopted into the family. The law treats adoption the same as birth.

As noted above, the FMLA only guarantees unpaid leave. There is no requirement that an employer pay the father his salary or wages during the time off. Also, while out on leave, the new father will not accrue paid time off, time for seniority, or have contributions made to 401(k) or pension plans (assuming the employer offers one). The FMLA gives you unpaid leave while holding your job: it doesn't do anything else.

Critically, the FMLA does not cover all employers or employees. In order for an employer to be required to provide time off under the FMLA, the employer must be a:

1) government employer (at any level of government: i.e. the federal, state or local level) or

2) a private employer with 50 or more employees working within a 75-mile area of where the father works. The many private employers smaller than that are not covered by the FMLA—which means that their employees are not entitled to unpaid paternity leave.

Even when the FMLA does cover the employer, the father who wishes to take time off must also meet certain criteria. He must have worked for this employer at least one year prior to taking leave and he must also have worked at least 1,250 hours during the 12 months leading up to his request for leave. This means that new employees are not covered; also employers working less than around 25 hours per week are not covered. (As a result of these eligibility criteria, if you are thinking of having a child within the next year, if you’re currently at an employer where you are eligible for FMLA leave, don’t switch jobs until after you’ve taken paternity leave—switching jobs during the year before birth or adoption will make you ineligible for leave.)

Two Parents Working for Same Employer

If father and mother both work for the same employer, they are permitted a combined total of 12 weeks off. This means that they must split this time off between them. Since in many cases, the mother will take the majority of the FMLA leave for her maternity leave (because she may have to physically recover from birth), the father will have limited or even no opportunity to be home with his infant.

State-Specific Leave Rules

While the FMLA is the only federal law protecting a father's right to time off after a child is born, certain states have passed laws supplementing the FMLA or which are more liberal than the FMLA. It is therefore important to always check your state’s laws.

That said, not all states provide paternity leave, and even when they do, all state laws are not created equal. In some cases. For example, the state paternity leave applies only to state employees, not employees working for private businesses.

Take Illinois: under Illinois Administrative code title 80 section 303.130,;all male or female employees who work for the state are entitled to four weeks (20 work days) of paid parental (that is, either maternity or paternity) leave as long as they provide their employer notice at least 30 days prior to the expected date of birth.

In other cases, state laws simply expand FMLA protections to all workers within the state, including those in the private sector, without guaranteeing paid leave. For instance, according to the Rhode Island Parental and Family Leave Medical Act, employees who have worked for their employer at least one year are entitled to 13 consecutive weeks of parental or family leave within any two calendar years. The employee is required to give the employer at least 30 days notice prior to taking leave unless a medical emergency occurs. Tennessee, too, extends the protections of the FMLA and allows for up to four months (16 weeks) of leave with advanced notice or in cases of a medical emergency.

PAID time off: A few states have gone even further and have actually guaranteed parents the right to paid leave to spend time with children:

  1. In New Jersey, for instance, Family Leave Insurance benefits are available to allow a new parent to take up to six weeks paid time off to spend with a newborn child during the first 12 months of the child's life (or during the first 12 months after a child is adopted). The scope of law is broader than that of the FMLA in a critical way: it covers more types of families and more types of children than does the FMLA. Not only biological children and adopted children, but also foster children, step children, children of domestic partners or civil union partners, and legal wards all count as "children" for the purposes of determining whether a parent can take leave in New Jersey. The insurance plan providing the paid benefits is funded by employee contributions, and paid leave for employees is provided either by a state fund or by an employer's private insurance plan. 
  2. California also offers partially paid (generally between 60% and 70% of wages) time off for up to six weeks under the state’s Paid Family Leave (PDL) law (click for more information about this program).
  3. Washington has passed a law allowing up to 12 weeks of such leave, effective in 2020.

Other Options

Some states also have laws requiring "flexible sick leave" in addition to or instead of laws providing for parental leave. When flexible sick leave laws are in place, employers are required to allow employees to use their sick time to provide care for a family member (rather than only allowing an employee to use sick time for himself) who is suffering from medical problems—including pregnancy complications.

However, you have to review your specific state’s laws to see what rights it gives you. The ability to use flexible sick time to care for a healthy child is not guaranteed in all states. For instance, while Connecticut's flexible sick time law allows fathers to use up to two weeks of accumulated leave to care for a healthy baby, California's flexible sick-days law only makes flexible sick time available to someone who needs to care for a family member who is ill (so, only if the mother or child is sick or suffering some post-birth complication).

Anti-Discrimination Rules

There is a final protection afforded to fathers by federal law: the right to be free from sex discrimination pursuant to Title VII of the Civil Rights Act of 1964. Under this Act, if a mother is provided by her employer with either paid or unpaid time off, or other benefits, in connection with the birth of a child (which leave or benefits are related to her own disability or medical condition caused by the pregnancy), the same benefits must be offered to a father as well. Fathers cannot be treated differently or worse than mothers under the anti-discrimination laws.

Getting Legal Advice

If an individual believes his parental right to paternity leave has been violated, it is advisable to consult with an experienced attorney for guidance and advice. Because the laws on paternity leave differ from state to state, a local attorney practicing in your state is the best source of information on paternity leave and family law issues.

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