Paternity leave is the time a father takes off from work at the birth or adoption of a child, or placement of a child for foster care. It is not surprising that the majority of employers responded that they do not offer paternity leave to their employees. Most employers offer parental leave time for both female and male employees. While companies traditionally have not found a need to provide their male employees with paternity leave, the anti-discrimination laws and the changing legal landscape granting increased family leave benefits have resulted in employers rethinking their leave policies. Further, employee productivity, retention and morale have encouraged employers to incorporate both maternity and paternity leaves into their corporate cultures.
Even if an employer does not offer paternity leave, if that employer has 50 or more employees, a male employee may still be able to take unpaid leave time under the Family and Medical Leave Act. Under the FMLA, eligible employees may take up to 12 unpaid workweeks during any 12-month period for the birth and care of a newborn child, adoption of a child, or placement of a child for foster care.
Employers should also carefully review their paternity leave policies, or lack thereof, to ensure that they are in compliance with state and local laws. Some state laws provide for family leave time that is more beneficial to employees than the federal FMLA. In such instances, employers must follow the law, whether state or local, that is most favorable to the employee. In one state, California, even if an employer does not provide paid parental leave, male employees are more likely to request such time off after the birth of a child because they may be eligible for paid temporary disability benefits, also known as paid family leave, through the state's disability insurance program.
Importantly, employers must note the potential risks in providing leave for care of family beyond that which state law may require and/or allowing for additional time for leave beyond what the FMLA, or the state law equivalent, requires. Employers who go above and beyond what is legally required for female employees may face federal sex discrimination charges if they do not provide similar leave to male employees. Accommodating female, but not male, employees could constitute unlawful discrimination against male employees on the basis of sex. Finally, employers should avoid offering paternity leave on a case-by-case basis. The inconsistent application of a leave policy will leave an employer vulnerable to potential legal liability.
Krupin O'Brien LLC is a nationally recognized law firm specializing in employment and labor law and exclusively representing employers in the areas of labor relations, employment law, business immigration and related litigation. The firm has a particular expertise in representing restaurants and the hospitality industry, and represents companies and ownership groups of all sizes, both local and nationally. For further information contact Ana Salper, an attorney with Krupin O'Brien LLC, where she represents clients on all forms of litigation, and counsels clients on diverse employment and labor matters. Ms. Salper oversees the firm's New York office and is a member of the New York State Bar. Contact her at: 212-745-1387 or ana@krupinobrien.com.
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