15 November 2022

Paid Parental Leave: What to Consider When You’re Considering

Men are from Mars, Women are from Venus.  Thirty years after Dr. John Gray published his famous relationship book, the planets have aligned to largely take the phrase out of orbit—for a number of reasons.  Among other explanations, society has overhauled how it thinks and talks about sex and gender—and the associated roles.  Add in a recent emphasis for employee parental leave benefits, as well as technological advances in fertility and changing cultural norms on family, and you may feel your head about to go supernova.

Cutting the cosmic metaphor, here are a few facets to think about when contemplating adding to, subtracting from, or modifying your paid parental leave policies:

1. Birth matters

It should not be a surprise to anyone that parents who give birth can enjoy parental leave beyond what is given to every other new parent.  The EEOC agrees with this position.  For example, it is legal for an employer to offer 10 weeks of leave to employees for pregnancy and childbirth, and, separately, 6 weeks of leave for bonding.  The policy is not discriminatory against males, even though a female employee could take 16 weeks of leave (10 weeks for pregnancy and childbirth/recovery + 6 weeks for bonding) and a male employee could only take 6 weeks of leave (for bonding).

2. Bonding doesn’t matter (legally)

Again, there shouldn’t be anything earth-shattering here.  Bonding with a new baby is incredibly important for parents and babies.  Even if society has historically considered bonding to be more of a motherly matter, that’s no legal basis to treat employees differently.  So, for example, a man who just welcomed a new addition and a woman who gave birth to a little bundle of joy are both given the same amount of parental leave for bonding.

3. Think outside the box

Everyone knows that FMLA eligible employees can take up to 12 weeks of unpaid parental leave each year.  Equally known is that employers can pay employees for this time—within eligibility parameters set by the employer—and have the time run concurrently with the FMLA leave.  But some companies have begun to explore roads less traveled.  Grandparents’ leave?  Cisco did it, offering new grandparents up to three paid days off.  A back‑to‑work transition program?  Estée Lauder offered it years ago.

Yet, if the box is parental leave, truly outside‑the‑box thinking will weigh the pros and cons of benefits that concern parenting even if they aren’t necessarily about leave.  For example, companies are increasingly offering benefits to help employees offset the costs of fertility treatments, the freezing of genetic materials, or adoption fees.  It is evident that familial cultural norms are in a state of significant flux.  As cultural attitudes adjust to welcome and support new ways to build a family, offering competitive benefits to those families is an excellent way for employers to stand out from competitors and attract diverse talent.

4. Is that all?

Private employers aren’t the only ones to notice the recent emphasis on paid parental leave.  Noticing federal gridlock, state legislatures and localities have begun to intervene.  At the time of this writing, approximately 11 states, and multiple local governments, have their own paid parental leave laws in place.  So, although it may be true that federal law does not require paid leave, it is increasingly the case that state or local law will require it.  In those cases, employers are almost certainly not able to implement paid parental leave benefits that are lower than the floor set by a governmental paid parental leave law.

The advent of state paid parental leave laws, and the established restrictions on sex and gender discrimination, leave employers with two principal ways to gain a competitive edge in recruitment and retention.  First, paid parental leave offered beyond 12 weeks will generally surpass benefits required by state laws (or state laws that will be passed in the future).  But because this will be applicable to a significant portion of your employees, it is a significant undertaking that should be considered especially carefully.  Second, benefits that are ancillary to parental leave—fertility treatments, etc.—will impact only a subset of your employees and can be a great bang for your buck.  Go too far with it without also providing a competitive paid parental leave benefit for your employees, however, and you may see employees question why you are not simply offering more paid parental leave.

In the end, policies about paid parental leave and related benefits are some of the most complex an employer may implement.  Especially when they are finely tailored, they should be drafted with the assistance of legal counsel.  Be sure to contact your legal counsel with any questions.


Contact the author Adam Walker.