Paternity Leave Lawyers

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 What Is Paternity Leave? Is Every Employee Entitled to Paternity Leave?

The concept of maternity leave is familiar to most of us. Maternity leave is a specified period of time off work offered to mean after they give birth. It is a specified amount of time after a woman gives birth in which they are allowed to be absent from work. The point of maternity leave is to allow a new mother to rest, recover, and spend time with her infant before returning to work.

Published research has shown that an adequate period of maternity leave can prevent depression and stress in mothers, increase the probability that their babies will receive well-baby care, and even lower the infant mortality rate, as well as mortality for young children.

Other types of leave in the United States allow family members to take leave from work to bond with their new child (or children). This type of leave is known as family leave. It often includes time off for either parent, mother or father, who is welcoming a child into their family through adoption or surrogacy.

Another form of family leave is paternity leave, in which the partner of a new mother is entitled to time off from work after the birth of a child. Again, the purpose of this time off is to allow the father to bond with their new child and fulfill their caretaker duties.

Although all forms of family leave seem like an obvious concept, not every employer offers paternity leave to their employees. Even those who do offer paternity leave, generally do not provide pay to the employee while they are on leave. What this means is that a parent who takes paternity leave sustains a loss of earnings. For this reason, most parents do not opt to take leave, because they cannot afford to.

The Family and Medical Leave Act (FMLA) is a federal law that requires employers to which the law applies to provide their employees with unpaid leave of a specified length for certain defined medical and family circumstances. As stated above, few employers offer paternity leave as a form of family leave. However, paternity leave is provided by the FMLA for those who qualify under its terms. The FMLA requires the employers to which it applies to give both male and female employees unpaid family leave after the birth or adoption of a child.

As a federal law, the FMLA applies in all states in the U.S. Eligible employees are generally entitled to:

  • Twelve work weeks of unpaid leave in a period of twelve months for:
    • The birth of a child and caring for the newborn child within the first year of its birth;
    • The placement with the employee of a child for adoption or foster care and to care for the child within the first year of its placement;
    • Providing care to the employee’s spouse, child, or parent who has a serious health condition;
    • For the employee whose serious health condition makes the employee unable to perform the essential functions of their job;
    • For any qualifying situation that arises from the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;”
  • Medical and/or health benefits during the period of leave; and
  • The right to return to their original position when the leave ends and they return to work.

The states of California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, and Washington and the District of Columbia offer qualified employees in those states paid family and medical leave. The laws that authorize paid family and medical leave are currently in effect in six of the states and in the District of Columbia. A paid family and medical leave law is scheduled to take effect in September of 2023 in Oregon and in January of 2024 in Colorado.

The United States is one of the few developed countries in the world that does not offer its workers a nationwide paid family and medical leave policy.

What Are the Advantages and Disadvantages of Paternity Leave?

One of the greatest benefits of paternity leave is that the person taking leave has the opportunity to spend quality time with their new child. This is important for a healthy work-life balance and a person’s family life. Paternity leave allows for all-important bonding between a parent and their new child, which benefits the family as a whole. It allows the partner taking leave to better fulfill their responsibilities as a parent and a partner by shouldering some of the care of a newborn infant.

Paternity leave helps to promote working women. Statistics have shown that not only do women work the same hours as or more hours than their male counterparts, they also fulfill many more hours of childcare responsibilities once they are home from work. Paternity leave helps promote the increased participation of male spouses in the care of infant children, thus relieving female partners of some of the burden.

The biggest disadvantage of paternity leave in the U.S. is that it is, for the most part, unpaid, if it is offered at all. Paternity leave is offered by few employers in the U.S., and it is unpaid leave. Many employees cannot afford to forgo weeks or months of income. This is especially true for workers at the lower end of the pay scale. Time spent away from work means a reduction in financial resources available to the family at the very time when its expenses are on the rise, that is, when they welcome a new family member.

In 2017, the Pew Research Center reported that 40% of workers who took family leave took less time off than they really needed or wanted.

A person taking leave might be able to use paid sick or vacation time instead of paternity leave in order to minimize economic loss. However, many employers require approval of the reasons for sick leave before it is granted. And, unfortunately, not all employers offer paid vacation or paid sick days. So, many workers have no available paid leave time for paternity or family leave.

What More Is There to Know About the Family and Medical Leave Act?

Paternity leave is typically governed by state law. So, as noted above, whether it is offered and how it works varies from state to state. This is not the case with the FMLA, which is a federal law that applies equally throughout the U.S. It guarantees employees who work for businesses with more than 50 employees, public agencies and schools up to twelve weeks of unpaid leave. As noted above, the employee is also guaranteed to get back the position they had before they took leave when they return.

Employees who qualify for leave under the FMLA cannot be fired for taking family leave. The FMLA also forbids any other kind of retaliation against an employee who has taken family leave. An example of this would be if an employee were to be passed over for a promotion they were otherwise qualified for while they were on family leave.

Some states have much more generous family leave policies than what is provided by the FMLA, and some even require that paid leave be offered. However, states that do entitle their employees to receive compensation during their period of leave usually stipulate that the pay may not be equal to the employee’s regular salary or wages. Additionally, the pay may not come from the employer but from the state government.The pay for paid family and medical leave is usually a weekly “benefit payment” that is a percentage of the worker’s usual income.

Do I Need an Attorney for Help With Paternity Leave?

Employers to which the FMLA or state family leave laws apply could be in violation of the law if they deny paternity leave to an employee who qualifies for it. If your employer has denied your request for paternity leave after you have given the required notice, you should consult with a skilled and knowledgeable employment law attorney.

An employment law attorney can explain your rights under federal and state law and advise you of your options. Your attorney may be able to negotiate a resolution with your employer or represent you in court as needed.

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