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Maternity and paternity leave in the US: What you need to know

Maternity and paternity leave in the US: What you need to know

Parental leave vs medical leave

When understanding parental leave laws, it is important to understand the difference between parental leave and medical leave. Parental leave is the time taken to take care of or bond with a child. Medical leave is leave necessitated by medical condition. With these two definitions in mind, let’s take a look parental leave laws in the United States. 

Is there a law and/or regulation?

Employers with 50 or more employees within a 75 mile radius of the worksite must comply with FMLA (Family Medical Leave Act) standards. This means that if an employee meets FMLA criteria, the employer must offer a new parent—regardless of gender—up to 12 weeks of unpaid parental leave and the ability to return to the same position with no reduction in compensation, standing within the company or loss of healthcare coverage.

Employers do not need to offer new mothers or fathers paid parental leave unless required by state law. States that require paid family leave include: California, New Jersey, and Rhode Island.

Title VII, a set of laws that regulate equality in the workplace, requires employers to offer the same parental leave to both mothers and fathers. For example, if an employer offers 10 weeks of paid parental leave to new mothers, that employer must also offer 10 weeks of paid paternity leave to new fathers.

Biological mothers enrolled in their employer’s short-term disability plan may be entitled to medical leave in addition to parental leave. Title VII does not require fathers to receive this same benefit because fathers do not experience the same physical toll as biological women during pregnancy and childbirth. For example, a company can legally offer women 6 weeks of paid leave under short-term disability without extending the same 6 weeks of paid leave to the father because the father doesn’t have the same medical needs as a mother following childbirth.


What is the potential fine if I don't comply?

If an employer fails to offer leave guaranteed by FMLA or utilizes a discriminatory parental leave policy, employees can file a civil lawsuit against the employer in order to collect damages. If the employee wins the lawsuit, the employer will be responsible for paying:

  • Back pay: pay and benefits that employee was entitled to, but did not receive

  • Front pay: future pay and benefits that the employee will not receive due to noncompliance

  • Attorneys’ fees

Some states may also issue additional fines for emotional distress and punitive damages. See FMLA state penalties here.


What happens if I am not compliant?

If an employer is taken to court for failure to offer paid leave or for discriminatory parental leave practices, it is very likely that that employer will be responsible for paying back pay, front pay, and attorneys’ fees.


If caught out of compliance, what's the likelihood I'll have to pay?

If an employer is taken to court for failure to offer paid leave or for discriminatory parental leave practices, it is very likely that that employer will be responsible for paying back pay, front pay, and attorneys’ fees.


Is there a risk of a lawsuit?

The risk of a lawsuit depends on the intent of the employer when the violation was made. If the employer willfully broke the law, that employer will have an increased likelihood of a lawsuit. If an employer showed due diligence, that employer will most likely be able to settle the issue before a lawsuit becomes necessary. The likelihood of a lawsuit also depends on the magnitude of noncompliance, the number of employees represented in the case, the size of the company being sued and the publicity of the case.

For instance, Estee Lauder was recently engaged in a lawsuit in which over 200 fathers alleged that the company had not provided equal parental leave benefits to men and women. Estee Lauder was ordered to pay a $1.1 million sum to be awarded to the fathers represented in the case.


What's the cost of compliance?

In order to remain compliant, employers should have a human resources professional on staff who understands FMLA regulations. Subscriptions to online HR publications such as SHRM can be helpful when fact-checking compliance-related questions. Employers can expect to spend around $200/year on these subscriptions.

Employers can also pay a certified HR professional or a lawyer specializing in employment law to audit their company’s parental leave policy.  These audits range significantly in cost depending on the scope of the audit and the size of the organization. Some insurance providers offer compliance audits for free in order to encourage administrative best practices.


Is compliance black and white or is it gray?

When it comes to offering men and women the same parental leave benefits, compliance is black and white. Employers are required to offer the same parental leave benefits to both men and women. Medical leave in addition to parental leave applies only to mothers recovering from childbirth.


What is the risk of negative public relations?

The risk of negative public relations is medium. If an employee feels that their employer is discriminating on the basis of sex or gender, that employee may post negative company reviews to job boards. This could significantly impair an employer’s ability to hire quality candidates in the future. If a lawsuit becomes necessary, the risk of negative public relations is high.


What would our HR Heroes say is the best practice?



 Bythe Booke:We’re looking to recruit new talent and a lawsuit or disgruntled employee certainly won’t help our case. Plus, discrimination in the workplace is unethical—we should take every precaution to ensure that our parental leave benefits are fair and equal for both mothers and fathers. Let’s brush up on FMLA and anti-discrimination laws and, just for good measure, hire a certified HR professional to conduct an internal audit.



 Sam Blackheart: I’m not super familiar with anti-discrimination laws when it comes to parental leave, but I don’t think we are actively discriminating. Let’s plan on allowing mothers and fathers to take up to 12 weeks of unpaid parental leave if requested. Additional medical leave covered by our short-term disability plan can also be an option to mothers. We can encourage employees to contribute unused PTO days to FMLA-covered parental leave in order to cut costs.


iStock-165967112Peggy Prag: We only have 25 employees, which means that it isn’t subject to FMLA regulations. Obviously, new parents need time to acclimate to having a newborn, so let’s offer 10 weeks of unpaid parental leave to both mothers and fathers. If a new parent requests additional time off for parental reasons, we can evaluate on a case-by-case basis.


Have a question you’d like to see our heroes answer next? Let us know in the comments section below!

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