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Fri Aug. 4th, 2017 PTWWW Legal Alert

New fathers are beginning to request time off from work to care for newborn children with increasing frequency. While historically there has been some stigma attached to this, fathers are becoming much more willing to avail themselves of paternity leave as it becomes more readily available. This paradigm shift is likely to continue for the foreseeable future and will have a significant impact on work forces across the country.

Is Paternity Leave Required?

While there is currently no federal law requiring employers to provide paid paternity leave, many businesses are “covered employers” for purposes of the Family Medical Leave Act (FMLA) and therefore must provide 12 weeks per year of unpaid leave for a host of reasons, including the birth and care of a newborn child.

In 2016, San Francisco became the first city in the country to pass legislation requiring many employers to provide workers with paid parental leave in 2016. Although it is the first city to do so, it will likely not be the last.

Evolving Area of the Law

For example, in June 2017, the ACLU filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging an employer discriminated against fathers who requested parental leave. The employer has a policy of providing 16 weeks of parental leave to employees, but allegedly denied leave to a father because it determined he was not the “primary caregiver.” The ACLU alleges the company informed the employee of its presumption that a child’s primary caregiver is the birth mother, and that he would have to show that his wife was returning to work within 16 weeks of childbirth, or was medically incapable of taking care of the baby, in order to receive the benefit. According to the complaint, the employee was only allowed two weeks of leave as a “non-primary” caregiver.

The ACLU believes the employer’s practice violated Title VII of the Civil Rights Act, which bans gender discrimination in employment, among other things. Although the EEOC has provided some guidance on this topic, it is still very much an evolving area of the law, and employers would be wise to monitor developments to stay abreast of the latest news.

The Future of Paternity Leave is Looking Bright

A number of private businesses have adopted their own policies in order to offer a better work environment for their employees. Over the last decade or so, for example, some of the most well-known companies have expanded or implemented paternity leave policies. Netflix offers a full year of paid paternity leave, and other companies such as Etsy, Spotify, Twitter, and Facebook offer leave ranging from 17 to 26 weeks.

In 2011, Major League Baseball implemented a paternity leave policy allowing players up to three days off to be present for the birth of a child. In the first six seasons since it was implemented, an average of 25 MLB players per year took advantage of the leave policy. In the first half of the MLB’s 2017 season, 26 players have already taken leave.

What Should Employers Do?

Some suggestions for employers include the following:

  • Rework existing parental leave policies to ensure legal compliance.
  • Draft policies that apply equally for fathers and mothers.
  • Speak with legal counsel when making decisions regarding granting or denying leave requests.

Cultivate a work environment where employees feel comfortable taking paternity leave.