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Know the Law: Considerations for Implementing a Parental Leave Policy

Written by: Laura McKelligott Kahl

Published in the Union Leader (8/5/2021)

Q: Our New Hampshire company would like to implement a parental leave policy. What are some things we need to consider to get started?

A: The following are some of the many considerations to take into account when planning a parental leave policy.

You will need to decide how much leave to provide and whether some or all of the leave will be paid. You will also need to decide which employees will be eligible for the leave. For example, will only full-time employees be eligible? Will employees need to have a certain tenure with the company before becoming eligible?

If your company has employees who may be eligible for Family and Medical Leave Act (FMLA) leave, you should be mindful that those employees would be entitled to 12 weeks of unpaid, job-protected leave, which can be used for parental bonding. If you have FMLA-eligible employees, your company can still offer parental leave, but you will need to decide how the company-provided leave will interact with the FMLA leave, and you will need to comply with the regulations that will apply to any parental leave that coincides with FMLA leave. If your company does not have any FMLA-eligible employees, you will have more flexibility in deciding the amount of leave to provide and designing the policy.

If you have employees in other states, you must determine whether they would be eligible for parental leave under the laws of those states. If so, you will need to decide how the company-provided leave will interact with those laws, and understand the company’s obligations under them.

If any unpaid parental leave will be provided, you should consider whether employees will be required or permitted to use available vacation, sick or other paid time off during the leave. 

If the company offers parental leave, it must be provided to all eligible employees, regardless of sex or gender. While the company cannot provide more parental leave to female than male employees, it could recognize the physical toll of childbirth by also offering medical leave that can be taken for pregnancy and childbirth, among other medical reasons.

A parental leave policy is one of the most complex policies for an employer to create. Employers should consult with experienced employment counsel when creating one to ensure that it covers all issues that should be addressed, and complies with applicable law.

Laura Kahl is an attorney in McLane Middleton’s Woburn office and is admitted to practice in Massachusetts.  She can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by McLane Middleton.  Questions and ideas for future columns should be emailed to [email protected].  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.

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