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Parental Leave Policies: Avoiding Workplace Discrimination Through Equal Treatment of Men & Women

When developing a parental leave policy, employers should keep in mind both federal and state anti-discrimination laws. Employers are generally not required to provide paid leave after a child’s birth, however; if paid leave is offered to new mothers, then such leave must also be offered to new fathers as well. In other words, if an employer is going to offer paid leave, it must be inclusive of both sexes as a type of parental leave (versus maternity or paternity). If parental leave is not offered equally to both sexes, then a business could face a potential sexual discrimination lawsuit.

While employers are not required to provide paid leave, male and female employees are eligible for unpaid parental leave according to both federal and state laws. The federal Family and Medical Leave Act (FMLA) requires employers to provide 12 weeks of unpaid leave to employees in order to care for and bond with a newborn. This means a parent has the option of taking up to 12 weeks of unpaid leave with the right to job restoration upon return.

However, not every business is regulated by FMLA. For instance, while FMLA applies to all public agencies, the law only applies to private sector employers who have at least 50 employees. Additionally, the unpaid leave must be taken during the first year of the child’s birth, adoption, or foster care placement. There are further limitations if both parents work for the same employer, in which case the 12-week time period may have to be shared.

There are also state laws that require employers to give employees time off for parenting leave. The California Family Rights Act (CFRA) is similar to FMLA in that it allows parental leave, however, it is much more generous in that it can provide paid leave to parents for up to six weeks through the Paid Family Leave (PFL) insurance program. California was the first state to guarantee six weeks of paid leave for mothers and fathers alike.

The California PFL insurance program extends unemployment disability compensation to cover individuals who qualify for parental leave. Program benefits include about 55% of earnings, which are administered through the State Disability Insurance (SDI) program and come from employee contributions. It is important to note that the six weeks of PFL time must be taken concurrently with the twelve weeks of unpaid leave provided by FMLA and CFRA.

Therefore, when developing company leave policies, employers have multiple federal and state laws to keep in mind. For instance, when coordinating parental leave with FMLA requirements, one must also keep in mind CFRA requirements as well as disability insurance policies like PFL. Additionally, while some states allow certain leave policies to run in addition to FMLA, California law states that leave policies like PFL must run concurrently with FMLA and CFRA.

Lastly, employers should establish leave policies that provide equality for both men and women so as to avoid a sexual discrimination lawsuit. With laws making it clear that both new mothers and fathers are eligible for parental leave, it is in the best interest of companies to follow suit when constructing leave policies to allow for more workplace equality. This in turn will limit sexual discrimination in the workplace since the biases associated with parenthood would be spread amongst both sexes. Leave time then becomes a question for employees to handle in the privacy of their own home, which takes away any potential blame from employers.

 

Lindy GiacopuzziRotz

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Lindy is a 3L attending California Western School of Law. She has a focus in Child, Family, Elder law and is looking to graduate next spring.

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