Paternity vs. Maternity Leave: Key Legal Differences

For families expecting a child, it can be an exciting time. Whether this involves the birth of a newborn, adoption of a child, or foster care, parents often want to take time off work to welcome the new addition to their family. This allows new parents to bond with their child, recover from childbirth (for birthing parents), and figure out childcare arrangements.

But this can be overwhelming if you aren’t quite sure what your rights are with respect to parental leave. In this article, we examine parental leave laws and the different types of leave that may be available for parents expecting a new family member.

What is Parental Leave?

Parental leave is a type of employee benefit that allows parents to take time off work to care for their new baby/child. This leave can be for birthing parents, adoptive parents, or foster parents.

In this context, we often hear references to “maternity leave” and “paternity leave.” These terms are becoming less common in favor of the more inclusive "parental leave." This better recognizes all families, including those with same-sex couples, and adoptive/foster parents.

Inclusive language regarding parental leave also supports gender equality by affirming both parents’ potential roles as caregivers for the new child.

Still, we start with a brief explanation of maternity and paternity leave.

Maternity Leave

Maternity leave refers to the time a mother or birthing parent takes off work before and after the birth of their child. It can apply to those giving birth, adopting a child, or fostering one.

For birth mothers, it may start before the baby is born. For adoptive or foster mothers, it can also begin before the child joins the family. For example, an adoptive mother may begin her leave early because the adoption process requires training/travel.

But typically, maternity leave starts when the child or baby joins the family.

For birth parents, maternity leave is usually longer than paternity leave because it includes time for physical recovery.

Paternity Leave

Paternity leave refers to the time fathers or non-birthing parents take off work when a new child/baby joins the family. There are several reasons these parents may want to take leave at this time.  Amongst them, it allows the father or non-birthing parent to:

• Participate in early childcare
• Adjust to new family dynamics
• Support their partners

Like maternity leave, it usually begins when the child is born or joins the family, but it too can start earlier. For example, a father or non-birthing parent may take leave early to care for a birthing parent who’s incapacitated because of their pregnancy.

Paternity leave can also apply to birth, adoption, or foster care events. However, it's often shorter than maternity leave for birthing parents.

Sources of Parental Leave

The specifics of any parental leave, such as duration and whether it’s paid or unpaid, can vary with the circumstances. Federal law sets a baseline for parental leave. State law and employer policies also frequently provide additional benefits. All of these sources are critical to understanding the leave to which you’re entitled.

FMLA Leave

The main federal law covering parental leave is the Family and Medical Leave Act (FMLA). Enforced by the U.S. Department of Labor, the FMLA also provides other types of leave for family and medical reasons.

FMLA gives eligible workers up to 12 weeks of unpaid leave for the birth of a child or placement of an adopted/foster child. Eligible workers can include full-time and part-time employees.

This job-protected leave under the FMLA means eligible employees can take time off without fear of losing their jobs.

But, the FMLA provides no financial support.

Both parents may be eligible for parental leave under the FMLA. To meet FMLA eligibility requirements, employees must:

• Work for a covered employer
• Have worked for that employer for at least 12 months
• Have worked at least 1,250 hours during the 12-month period before the leave

Covered employers include:

• Private sector employers with 50+ employees within a 75-mile radius of the worksite
• All public employers
• Private elementary and secondary schools, regardless of the number of employees

While FMLA sets the minimum standard, some insurance programs, state laws, and employers offer additional benefits.

State Insurance Programs

State-mandated insurance may provide some critical financial support during parental leave. This can help with expenses while one or both parents are temporarily out of the workforce.

As of 2025, 13 states and the District of Columbia have established mandatory paid family leave programs. These programs require employers to provide insurance for parental leave.

Most of these states, like California, Rhode Island, and New Jersey use a social insurance model. This means the benefits are funded by payroll taxes from employees, employers, or both.

We discuss two state-specific examples below.

New Jersey

New Jersey law requires employers to provide their employees with:

• Temporary disability insurance (TDI)
• Family Leave Insurance (FLI)

TDI is intended for employees who can’t work because of an illness or injury (not related to work). This includes pregnancy and childbirth. So, it generally applies to birthing parents only.

However, New Jersey’s FLI parental leave benefits are available to birthing and non-birthing parents. FLI provides benefits to eligible employees so they can bond with a newborn, newly adopted, or newly placed foster child.

Both New Jersey programs pay eligible employees 85% of their weekly wages up to a maximum. The state’s maximum weekly benefit for 2025 is $1,081.

New York

New York’s mandatory paid parental leave program, however, is unique. The New York State Paid Family Leave (PFL) law requires funding through a private insurance system. This means employers must purchase paid family leave plans from a regulated insurance market overseen by the state.

Under this PFL law, employees taking parental leave receive 67% of their average weekly wages up to a maximum. New York’s maximum weekly parental leave benefit for 2025 is $1,177.32

State Leave Laws

All of these states that mandate paid parental leave also have state laws providing job-protected parental leave.

For example, the New Jersey Family Leave Act (NJFLA) provides unpaid job protection, like the FMLA, for 12 weeks. However, the NJFLA applies to more employers and has lower work-hour requirements.

Some states that don’t mandate paid parental leave still have laws that provide job-protected parental leave. For example, the Wisconsin Family and Medical Leave Act (WFMLA) provides eligible employees with up to 6 weeks of unpaid, job-protected leave for the birth or adoption of a child.

While these state laws may not seem helpful in light of FMLA’s job-protected leave, many of them have broader eligibility criteria. This means that many employees who don’t qualify for FMLA leave may qualify for job-protected leave under the WFMLA, for example.

It’s also possible that a parent may have exhausted their FMLA leave for a different qualifying reason, like caring for a sick family member. In these cases, the job-protected leave under state law may come in handy.

Some states have no laws addressing parental leave. For example, Alabama relies solely on FMLA’s unpaid leave.

Despite the lack of parental leave laws, employers in these (and other) states can choose to offer various parental leave benefits.

Employment Policies

Employers often offer their own parental leave programs. These may include short-term/temporary disability insurance benefits and/or paid parental leave policies.  

Workers are generally more likely to stay with an employer that supports their well-being and family needs. As such, generous leave benefits tend to result in higher employee retention rates. To improve retention and attract top talent, we often see private sector companies offering generous parental leave packages.

Other employers might only provide unpaid parental leave or ask employees to use their sick leave or vacation time.

Employers’ parental leave benefits can vary widely in terms of duration, wage replacement rates, and eligibility criteria.

Understanding Your Rights

Parental leave laws can be complex and vary by jurisdiction. Confusion frequently arises when multiple leave programs seem to apply to your circumstances.

You may have the right to stack these leave benefits consecutively to maximize time with your new family member. Yet several situations demand that certain leave periods begin tolling at the same time.

Whatever the case may be, it’s important you understand your entitlements under federal/state law, as well as your employer's parental leave policies.

This is particularly true because organizations don’t always follow applicable law or their own policies perfectly. Employers may wrongfully deny parental leave or retaliate against a worker taking it. And unfair treatment of employees because of their pregnant or parental status still occurs.

As a result, you may want to consider speaking with an attorney who can clarify the full scope of your parental leave rights.

Getting Legal Help

A qualified employment law attorney well-versed in parental leave matters can eliminate the guesswork for you at this consequential time.

The last thing you want is to leave any benefits on the table. But that’s awfully easy to do without a full understanding of the legal landscape surrounding your leave.

A trusted advisor can help you navigate this environment. They can identify overlapping laws and benefits available to you.

This web of laws and policy programs may seem daunting. But finding someone competent to help you sort through it all doesn’t have to be.

Findlaw’s dedicated directory of employment attorneys makes it easy. Just click on the state where you work to view local lawyers experienced with your state’s laws. You can also narrow your search results by city.

As you look forward to welcoming your newest family member, give yourself the tools to make informed decisions.