Know the Law: Offering Parental Leave to Employees

Published: Union Leader
August 14, 2018

Q.  I am HR Manager for a New Hampshire company. I am drafting a maternity leave policy and am not sure where to start. I have read about maternity, paternity, parental and family leave; and it is all so confusing.  What do we HAVE to provide and what should we provide to be competitive in this tight labor market?

A.  You are right; this can be confusing.  Often these terms are used interchangeably when, in actuality, they have different meanings. There are also both state and federal leave laws, and some laws apply only to employers of a certain size.  First, determine which laws apply to you and then distinguish between maternity leave, which is associated with childbirth, and parental leave which applies regardless of gender or whether one of the parents gives birth.

In NH, companies with six employees are required to give an unpaid leave of absence to any woman for the period of temporary disability associated with childbirth.  This leave can begin before the child is born and can last as long as the mother has birth-related issues which disable her from working.  Federal law (the Family and Medical Leave Act) requires companies employing fifty or more to provide up to twelve weeks of unpaid leave to either parent for the purpose of giving birth or bonding with the child.  Maternity and FMLA leave can run concurrently. Parental leave is usually associated with bonding and can apply to either parent and to parents who adopt or have foster children placed with them.

Recently, the Equal Employment Opportunity Commission settled a lawsuit  with cosmetics giant, Estee Lauder Companies.  The EEOC alleged that Estee Lauder’s  parental leave program violated federal anti-discrimination law because it granted new mothers time off to recover from childbirth followed by an additional six weeks of paid leave for child bonding while new fathers were given only two weeks of paid bonding time.  Only mothers were given flexible return-to-work benefits.  Estee Lauder will pay $1.1 million to 210 male employees, give fathers the same parental leave benefits as mothers, and provide anti-discrimination training to its employees.

Therefore, your new policy should keep disability and bonding leave separate, with gender neutral parental leave which is not dependent on one parent being a “primary” caregiver.  Although the law does not require paid leave, employers of choice provide some paid time off to both parents, a highly regarded benefit which could be critical to attracting and retaining employees with young families.