Paternity Leave, FMLA, and State Leave Laws

All new parents want to spend time with their new baby. Unfortunately, the current economic situation does not make that easy. Only a handful of states offer paid leave for new mothers after the birth of a child. Even fewer offer paid paternity leave and allow new fathers to spend time with the baby.

Most new fathers want to spend more time with a new child. State and federal agencies agree that paid parental leave would benefit everyone. Family rights advocates have been arguing for paternity leave for decades. Yet the situation remains the same.

Working dads have less time off than working moms and are often reluctant to take what little time they have. A few changes to employment leave programs and policies could make life easier for all family members.

The Desire for Paternity Leave

Fathers are as anxious to be part of their families' lives as mothers. Almost all fathers rank their children as their top priority. 90% of working fathers think employers should offer some type of paternity leave.

Despite this, fewer than three-quarters of all men take more than two weeks of available time off when a child is born. Only 6% take no time at all, and 8% take more than six weeks. The same survey showed that men would prefer to take their paternity leave later rather than immediately after the birth of the child.

Part of the problem may be social pressure. Society still sees men as the "breadwinners" of the household. Even new fathers still feel the need to provide for their families. Most paternity leave is unpaid, and the first weeks of an infant's life are uneventful. A new dad may feel both unneeded and unproductive sitting at home.

Paid paternity leave or letting the new parents divide their leaves between them as needed, would resolve this issue.

Paternity Leave Under the FMLA

The Family and Medical Leave Act (FMLA) is a federal law that guarantees 12 weeks of leave for American workers. The FMLA is unpaid but allows workers to care for sick family members without risking their jobs.

Under the FMLA, employee benefits continue, and the employee cannot be laid off or terminated. When the leave ends, they must return to their job or an equivalent position. The employee may coordinate FMLA leave with the employee's own paid leave, vacation, or sick leave.

Not all employees qualify for FMLA. Federal employees and private employees of companies with more than 50 employees can qualify for FMLA. To take paternity leave under FMLA, a father must:

  • Be taking leave for the birth or adoption of a child or to care for a pregnant spouse
  • Have worked for more than 12 months at the company
  • Have worked at least 1,250 hours in that 12-month period
  • Not be in a "highly compensated position" that would fall into an FMLA exemption

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 starts. Several other states either have or plan to provide paid leave for fathers. These states include:

  • Washington: State employees and employers with more than 50 employees; up to 12 weeks paid leave in any 12-month period
  • Rhode Island: All employees; up to 5 weeks paid leave for caregivers of family members; up to 30 weeks paid disability leave
  • New York: All private employees, full-time and part-time; public employees may opt-in; up to 12 weeks paid leave per year
  • Massachusetts: Employers with more than 25 employees; up to 12 weeks paid leave to care for family members
  • Connecticut: Public and private employers; up to 12 weeks paid leave in two years
  • New Jersey: Unpaid leave for up to 12 weeks; or 56 days of “intermittent leave"

Oregon, Colorado, Delaware, and Maryland have enacted paid parental leave laws but have not yet implemented them. Some state laws are more inclusive than FMLA, extending leave to domestic partnerships, civil unions, and other dependent adults.

Proposed Changes to Paternity Leave Laws

Fathers taking leave to help care for their newborns offers many benefits, including:

  • The parents divide family responsibilities evenly
  • The child is likely to have improved health
  • Men have a longer life expectancy
  • Mothers have higher earnings
  • Mothers are less depressed

Advocates have pushed for expanding paternity leave laws for many years. As part of his healthcare mandate, President Obama directed the federal government to study California's paid leave law to use as a model for other states in 2015.

Paternity leave policies would benefit businesses and families alike. The U.S. Department of Labor reports that the benefits of parental leave stretch from the workplace to the home and beyond. Paternity advocates argue for the extension of leave laws to ensure:

  • Paid family and medical leave: As noted, only a few states have any paid family leave laws. Others offer up to 12 weeks of unpaid leave, which does not benefit the majority of working fathers. Lack of pay is the primary reason fathers cannot take time off.
  • Protection against stigma: When Secretary of Transportation Pete Buttigieg took time off work to spend time with his newly adopted twins, media pundits questioned his work ethic. Men who take time with their new babies may seem less productive and less dedicated to their jobs.
  • Job protection: Being seen as less dedicated may mean losing a job. The FMLA prevents an employer from firing a worker while they are on leave, but other parental leave policies may not. Mandates assuring workers their jobs are safe are essential for paternity leave.
  • Expanded coverage: Paternity leave laws don't always cover part-time and small-business employees. They also may not cover childcare, foster children, or temporary disability needs. Workers need a comprehensive paternity leave law.

Your Right To Paid Leave

Society increasingly respects the role of fathers with young children. States and companies have begun offering paternity leave. These programs are new and change every year. Workers expecting new babies should keep an eye on their employee leave benefits. They should encourage their employers and bargaining representatives to push for other types of leave besides maternity leave.

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

Complicated state and federal workplace leave laws can be overwhelming. If you believe your employer denied you leave, consider contacting a family law attorney near you. An attorney can answer your questions and help protect your rights.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You can represent yourself in a paternity case, but establishing paternity can be emotionally and legally complex
  • Lawyers can help you understand your rights and responsibilities

An attorney can explain the legal procedures and consequences of establishing paternity. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

If you are in the midst of a paternity case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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