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What to Do When an Employee Requests Maternity/Paternity Leave
15 October 2024
FMLA covers family leave, but the law is confusing... and it doesn't apply to everyone. Here's what you need to know.
Clients often ask us how to respond to requests for maternity/paternity leave.
The first thing is to figure out whether the federal Family Medical Leave Act (FMLA) applies to your company, and this particular employee. If so: you just need to follow the law. If not... well, first let's go over how to know if FMLA applies to you, then we'll cover what to do if it doesn't.
To determine whether FMLA applies, consider:
1. Does your company have 50 or more employees?
If you're well below 50, FMLA does not apply. If you're at 50 or above (or getting close to this number), it applies to your company so move on to Question 2.
2. Does the employee in question qualify for FMLA?
To qualify, they must be a full-time employee who has worked with you for 12 months or longer.
If you answered YES to both of the questions above, you need to follow FMLA guidelines for maternity/paternity leave. What does that mean? In brief, you must provide up to 12 workweeks of unpaid leave per year for certain qualifying events, like a new baby. It's more complicated than that (of course!), so check out this Department of Labor FAQ page for more details, or reach out to us directly for guidance.
If you're required to accommodate FMLA, this gives you the minimum requirement, but many companies decide to offer more than the basic FMLA benefits. So what if you want to offer more than FMLA? Or what if FMLA
doesn't
apply to your company?
First, you need to consider ADDITIONAL legal regulations that may apply, such as the following:
- Pregnancy laws, like the recent federal Pregnant Workers Fairness Act, require employers to make certain accommodations during an employee's pregnancy. This may come up long before the maternity/paternity leave request, so it's worth taking note.
- State laws that are similar to FMLA may require you to offer benefits even if you have fewer than 50 employees.
- Disability laws that normally extend to pregnancy and the period of physical disability resulting from pregnancy/childbirth. These laws typically only apply to the mother (unless a doctor requests that the father to be home to provide care for mom or baby). And the laws only extend to the actual period of disability, not "bonding time." Keep in mind that post-birth physical disability may extend 6-8 weeks, or longer if there are complications, so this means you still need to accommodate a prolonged absence when a female employee gives birth.
Once you're up on the legal requirements (again, we can help you figure these out!), it's time to consider what you WANT to do. A few things to keep in mind:
- Company preference. Do you want to provide "competitive and compassionate" benefits and allow for paid leave? Or minimize what you give because you need your employees to be available? Or, more commonly, do something in between? Just like with any company benefit, weigh the cost and decide whether this is an area where you want to invest.
- THAT SAID - as a decent employer, there's a minimum you should provide. We recommend that even at your busiest time, you give a new father a week off (whether paid or unpaid) to take care of mom and baby.
- Equality. Unless your benefits are tied specifically to the physical disability due to pregnancy/childbirth, you're required to offer the same leave to both men and women. You can grant 1-2 weeks of "baby bonding" time to either sex. When added to pregnancy/childbirth disability leave it might appear that you're giving more to the mother, so you want to be careful in how you word these policies.
- Flexibility. We recommend that you DO NOT officially commit to benefits beyond the legal requirements. Especially in the trades, you may truly want to offer everyone the same leave... but it's just not an option to have a key technician out for 4 weeks in the busy season when you're short on staff. Give yourself the opportunity to be generous without making promises you can't keep.
- Employee preference. Before going down the rabbit hole of what you CAN offer, ask the employee what they WANT. If a male employee asks for a week off, that's easy - you just need to decide whether to dock this from the PTO bank (if available) or offer a separate paid leave. If a female employee only wants 6 weeks with the newborn, you can find a way to make that work. It's only when the request goes above what's standard that you'll want to take time and consider, and you can consult with us to decide how to move forward.
In all cases, we recommend early and consistent communication with the employee before the baby comes, and a plan for paying benefit premiums while the employee is out, and coordination for a smooth transition as the employee leaves. Communication is still important once the baby arrives, but be patient and keep in mind the new mom/dad may not have much energy for keeping in touch!
Let us know if you have any other questions on this topic.
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