Recently the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Estée Lauder for giving new mothers more leave for caregiving and child-bonding than new fathers.
Paternity leave benefits are much less common in the United States than maternity leave benefits. However, California is one of the few states in the country that provides fathers with paid time off via state law.
In California, paternity leave benefits are a part of the state’s Paid Family Leave (PFL) insurance program. The law provides disability compensation for men and women who take time off from work to care for newborn babies or injured or sick family members.
Anyone who pays into the California State Disability Insurance through payroll deductions is entitled to use PFL benefits at any time for a variety of situations. Parents are only eligible to receive PFL benefits within one year of a new child’s birth, adoption, or foster care placement. In addition, parents must also provide proof of relationship to receive approval for PFL benefits. If eligible, PFL will pay for up to 6 weeks while a new parent is on leave.
However, employers should not confuse PFL with a leave entitlement for new fathers. Employers who are subject to the Family Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA) must grant leave to new parents. FMLA and CFRA leave is unpaid, and gives parents the opportunity to take 12 weeks to bond with their new child.
Often we are asked by employers who are not subject to FMLA or CFRA if they have to provide paternity leave for their employees. Remember PFL does not entitle an employee to leave, it just provides pay if a leave is granted. Even still, I recommend employers grant personal leave to new fathers. As is shown by the EEOC case against Estee Lauder, not granting leave can appear discriminatory, aside from the general goodwill granting such a leave would foster.
PFL applies to all California employers, regardless of the size of their workforce. In addition, PFL does not provide an independent job restoration or reinstatement right for an employee who leaves work for a reason that qualifies under the PFL program, unless the employee is entitled to job protection under the employer's policy or another law. Another thing to consider in California is the Paid Sick Leave Program. Depending on which city the employee works, they are entitled to use paid sick leave benefits to care for a child. I recommend that when considering granting paternity leave, take their accrued paid sick leave balance into account.
Employers, especially smaller companies not subject to FMLA and CFRA are usually reluctant to provide paternity leave to new fathers. As I said above, it is a good practice to do so, but if it is a hardship the employer can get creative with how they grant the leave.
The employer can suggest an intermittent leave where the new father takes two days off a week, or maybe spreading the leave out where they take 2 weeks right after the birth and then a few more weeks later in the year. As with most things, communication is key and appreciated during this exciting time for your employees.
Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.
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