United States: Changing Tides In Parental Leave Policies: Maintaining A Lawful Policy In Light Of Recent EEOC Scrutiny

            Over the past five years, parental leave policies have become increasingly commonplace among employers. Such policies are important tools for recruiting and retaining talented employees, and are important components of a positive and inclusive company culture. Meanwhile, the Equal Employment Opportunity Commission (EEOC) is paying increased attention to how these policies may violate discrimination laws by providing unequal benefits along gender lines. Recently, the EEOC has placed certain policies under scrutiny. Taking lessons from these cases and other recent developments, this post provides employers with tips for ensuring that their parental leave policies are compliant with relevant laws.

            A recent EEOC lawsuit claimed that the company discriminated against a class of male employees in violation of Title VII because its parental leave policy "consistently and systematically" provided inferior parental leave benefits to biological fathers than to biological mothers. Specifically, the policy (which was separate from medical leave received by mothers for childbirth and related issues) offered less paid time off to male employees and denied them the flexible "back to work" benefits afforded to eligible female employees. The matter settled with the company required to reform its parental leave policies in a manner that ensures equal benefits to both male and female employees.

            This EEOC lawsuit last year was similar to one by an employee in Federal court in 2017 where a parental leave policy distinguished between primary and secondary caregivers – a common practice for many employers. The policy provides 16 weeks for primary caregivers and 2 weeks for secondary caregivers, but designated birth mothers as the default primary caregiver and presumed the fathers to be the secondary caregiver. One father, who was denied primary caregiver status because his wife was assumed to be the primary caregiver, filed a class action on behalf of all fathers alleging the parental leave policy violates Title VII and the parallel state law. The claim is still pending before the court.

How Employers Can Comply with State and Federal Parental Leave Law Requirements

            These recent cases are reminders for employers to pay careful attention to ensuring that their parental leave policies comply with both federal and state law. Updating and maintaining compliant leave policies requires a multi-faceted approach - employers must understand how leaves intersect and overlap with each other, as well as which federal and state laws apply to a particular leave.

The Family Medical Leave Act and Similar State Laws

            Employees may qualify and use a combination of leaves for pregnancy or parental-related time away from work. At the federal level, private employers with 50 or more employees are subject to the Family and Medical Leave Act (FMLA), which requires employers to provide unpaid leave for certain family or medical related reasons, including birth or adoption of a child and a serious health condition of the employee or of the employee's spouse (including pregnancy related conditions). Not all employees will qualify for FMLA leave – but it is important to note that both parents, not just a mother, are entitled to the leave for the birth of a child (regardless of whether a newborn has a serious health condition). Similarly, eligible adoptive parents are entitled to FMLA leave either before or after placement of child.

            Policies must also comply with state laws governing parental leave or family-related leave. For example, in Massachusetts, employees – male and female – are entitled to up to 8 weeks of unpaid, job-protected leave. Additionally, under the Massachusetts Paid Family and Personal Medical Leave Act, beginning in 2021, eligible employees will be eligible for paid family leave of up to 12 weeks to bond with their new child. New York and California have already enacted paid family leave programs that may overlap with leave under the FMLA. In California, employees are entitled to up to 12 weeks to bond with a child and, in addition, may be entitled to pregnancy disability leave separate from the child bonding leave.  New York's paid family leave program incrementally increases the length of leave entitlement from 10 weeks in 2019 and 2020 to a full 12 weeks beginning in 2021.

            Where employees are entitled to leave for a single qualifying reason such as child bonding under both a federal and state leave law, time taken may be counted simultaneously against the employee's entitlement under both laws.                                                            

The Americans with Disabilities Act and Similar State Laws

            Though the Americans with Disabilities Act (ADA) may not be the first law that comes to mind when drafting a parental leave policy, the ADA may be implicated because employers are required to reasonably accommodate employees with disabilities, including pregnancy-related disabilities. For example, even though an employee has exhausted her job-protected leave under the FMLA or the state equivalent, she may require an extended leave of absence if complications from childbirth create a qualified disability that requires additional time off.

            Several states have gone above and beyond the protections of the ADA by enacting strong protections for pregnant workers. For example, the Massachusetts Pregnant Workers Fairness Act (PWFA), which prohibits discrimination on the basis of pregnancy, requires employers to provide reasonable accommodations for pregnancy and related conditions. Whereas the ADA does not consider pregnancy in and of itself as a disability, the Massachusetts PWFA aims to provide accommodations to pregnant workers that may not typically rise to the level of a disability. Such accommodations may include time off to attend a pregnancy complication or recover from childbirth.

Anti-Discrimination Laws

            At both the state and federal level, it is increasingly important to ensure that parental leave policies also comply with protections such as Title VII and similar state anti-discrimination laws. Under Title VII, employers cannot provide parental leave in a discriminatory manner on the basis of sex, including leave required for pregnancy, childbirth, or pregnancy-related medical conditions. As mentioned above, the Massachusetts Parental Leave Act (originally entitled the "Massachusetts Maternity Act") is gender-neutral, and also ensures that employees on parental leave for the adoption of a child are entitled to the same benefits offered to employees on leave for childbirth. Even with the rise in state gender-neutral parental leave protections, employers must still be aware of anti-discrimination laws that protect and apply to pregnant women only, such as the federal Pregnancy Discrimination Act that amends Title VII.

Considerations for a Compliant Parental Leave Policy

            Given the developments in federal and state law, it is important for employers to be thoughtful in deciding what parental leave benefits they will provide to employees. Below are issues to keep in mind in evaluating and implementing parental leave policies:

  • Provide parental leave for child-bonding to similarly situated men and women on the same terms. Whether a policy provides unpaid leave, paid time off, flexible work arrangements, or other benefits, child-bonding entitlements should be equally available to employees regardless of gender lines.
  • Consider a Simple Policy. The most conservative approach from a legal risk perspective is to simplify the parental leave policy by providing eligible employees with the same benefits across the board.
  • Clearly distinguish between parental leave and medical leave related to pregnancy/childbirth complications. Employers can offer different benefits to birth mothers for medical reasons. For example, it is fine if a company's short term disability insurance provides paid benefits to birth mothers, but this disability leave should be treated separately from the universal parental leave entitlement. Or, an employer can offer a certain amount of time off for recovering from childbirth to birth mothers only (6-8 weeks is a standard range). But if that employer also offers an additional amount of leave for women to care for their newborn child, the employer must offer the same leave to men and adoptive parents.
  • Avoid policies that are facially neutral but favor women in practice. There are risks of having a policy that has requirements or definitions that result in differential treatment of male and female employees. Many employers use a primary and secondary caregiver framework for parental leave, in which the "primary caregiver – as defined by the policy and certified by the employee – is entitled to greater benefits than the "secondary caregiver."  Such a policy is still compliant so long as it is truly gender-neutral, including by not assuming that a female employee is the primary caregiver or slanting the definition of primary caregiver in the favor of female employees.
  • Make the company culture reflect the policy. The company's culture should promote and support all eligible employees to enjoy parental leave benefits. Employers should educate and train human resources employees and managers on the scope of, and philosophy behind, their parental leave benefits. If male employees are technically allowed to take paid parental leave, but get the message – whether explicit or implicit – that doing so is frowned upon and could derail their career opportunities, the policy is essentially meaningless to them and exposes the company to discrimination claims.

            Parental leave policies are an important part of a company's culture, and staying mindful of legal developments will ensure your parental leave policy benefits all employees and does not expose the company to legal risk or reputational damage. Employers should consult with counsel and update policies as necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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