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Paternity Leave, FMLA, and State Leave Laws

Most new fathers wish they could be more involved with their newly born or adopted child. Yet many working dads lack paternity leave (the time off from work given to new fathers at the birth or adoption of their child). And when they have access to leave, it's often unpaid. As a result, many new fathers spend time working rather than bonding with their child.

The Family and Medical Leave Act (FMLA) is a federal law that guarantees 12 weeks of leave for some family and medical matters. But FMLA leave is unpaid and only covers about half of America's workers.

A handful of states have tried to fill the gap by enacting laws requiring paid leave for fathers. But, despite these federal and state efforts, most working fathers don't get paternity leave. This situation has advocates for fathers and families calling for stronger laws.

The Desire for Paternity Leave

Research shows that most fathers want to play a more significant role in their family's life. Almost all fathers rank their children as the top priority in their life. Three out of four want to spend more time with their children. Close to 90% of 1,000 working fathers surveyed think it's essential for employers to offer paternity leave.

Yet the reality that many fathers face often doesn't match their desires. Lack of paid leave and the potential harm to their career keep many men from using paternity leave. Most fathers take only one day off for the arrival of a new child, and only a quarter take more than a week.

Paternity Leave Under the FMLA

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave. FMLA is available for family and medical reasons, such as caring for a new child, a pregnant spouse, or a sick child. The law requires employers to continue the father's healthcare coverage during their leave.

To qualify for leave under the FMLA, an employee must meet the following requirements:

  • Have worked for over 12 months before requesting leave
  • Have worked at least 1,250 hours in the 12 months before starting the FMLA leave
  • Works for an employer with 50 or more employees within 75 miles of the worksite

State Laws Mandating Paternity Leave

California was the first state to offer paid paternity and maternity leave. It enacted its Paid Family Leave Insurance program in 2002. The program covers employees who earned at least $300 in a base period. The employee must also have contributed to state disability insurance (SDI).

The program pays employees 60-70% of weekly wages earned five to 18 months before their coverage start date. Several other states either have or plan to provide paid leave for fathers. These states include:

Several state paternity leave laws are more inclusive than FMLA. For example, they extend family leave to domestic partnerships and civil unions.

Proposed Changes to Paternity Leave Laws

Fathers taking leave to help care for their newborn offers many benefits. For example:

  • The parents divide family responsibilities more evenly later in life
  • The child is likely to have improved health
  • Men have a longer life expectancy
  • Mothers have higher earnings
  • Mothers have less depression

These benefits have led advocates to push for expanding paternity leave laws. President Obama directed the Department of Labor to investigate using California's paid leave law as a model for other states in 2015.

Paternity advocates argue for the extension of leave laws to ensure:

  • More Paid Leave: Lack of pay is the primary reason most fathers do not take time off. Only 10-15% of U.S. employers offer paid leave for fathers. And most of the covered jobs are white-collar.
  • Protection Against Stigma: Even when they have access to paid leave, many men do not take advantage of it. A major reason is the fear they will appear less dedicated to their jobs. Many are also concerned that taking time off will lower their future earnings.
  • Guaranteed Job Protection: Many men fear adverse career effects if they take leave. Adopting policies to ensure men won't lose their jobs or get demoted may encourage them to use paternity leave.
  • Expanded Coverage: Paternity leave laws don't always cover part-time and small-business employees. Advocates push for expanding benefits to these workers.

Your Right to Paid Leave

Society is becoming more open to respecting the role of fathers in the home with young children. In response, many states and some companies are beginning to offer paternity leave. These programs are new and still changing.

Have Questions About Paternity Leave or the FMLA? Get Legal Help

Complicated State and federal workplace leave laws can be overwhelming. Consider contacting a family law attorney near you if you believe your employer wrongfully denied you leave. An attorney can answer your questions and help protect your rights.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

Contact a qualified family law attorney to make sure your rights are protected.

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