In 2014, the U.S. Equal Employment Opportunity Commission (EEOC) released guidelines on pregnancy discrimination and related issues, including paternity leave. The regulations specify that the same bonding time must be given to new fathers as is given to new mothers.
Specifically, the EEOC regulation states:
For purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).
Leave related to pregnancy, childbirth or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
“The criteria for mandated paternity leave is ascertained based on applicability of the Family and Medical Leave Act (FMLA), which applies to anyone who works for state, local or federal government for at least 12 months or for a private company that has 50 or more employees for the same period of time,” says attorney David Reischer, COO of LegalAdvice.com. “Additionally, many states have even broader paternity law requirements that exceed the scope of the FMLA,” he adds. These laws apply both when a baby is born to your employee and when one is adopted.
“Also, if your company offers leave for women to bond with a child, beyond what is medically necessary to recuperate from birth, you must also do so for new fathers, regardless of FMLA applicability,” says Reischer. The same bonding time, or parental leave, must be granted to men as it is to women.
Other Areas of Employment Law Related to Paternity Leave
Although not addressed in the EEOC’s new guidelines, there are other areas of employment law to keep in mind when you offer paternity leave. For example, you don’t want to discriminate against men who use paternity leave benefits.
“New fathers report being socially isolated, receiving snide remarks about how it must have been nice to be on vacation while everyone else picked up the slack, or being given punitive workloads or undesirable assignments. They also have reported being demoted, transferred, passed over for promotion or terminated,” says employment attorney Cynthia Thomas Calvert, president of Workforce 21C, which helps businesses to prevent family responsibilities discrimination claims.
These punitive actions can result in legal liability for the employer, Calvert says. “If the new father took FMLA leave, he may have claims under that statute for discrimination or retaliation. He may also have claims for sex discrimination if the actions were cause by sex-based stereotypes or if new mothers and new fathers are treated differently.”
She recommends training managers and human resources about this type of bias and monitoring the experiences of new fathers when they return to work. Calvert also recommends using the same best practices for new fathers that you do for new moms. This can include flexible hours, a gradual return to work and even “buddying up the new father with a mentor who will help him stay on top of issues at work and get back up to speed.”