Is It Time to Update Your Company's Parental Leave Policy?

By William Vogeler, Esq. on August 14, 2017 | Last updated on March 21, 2019

A trucking company boss asked a job prospect how close he could drive to the edge of a cliff.

Having seen two other seasoned drivers leave the interview room dejectedly, the applicant wondered if his skills were up to snuff. He finally replied: "I'd steer clear of the edge as far as possible."

He got the job and you get the point: When reviewing your parental leave policy, steer as far as possible away from crossing legal limits.

Mandatory Leave, Pay Not So Much

While parental leave under the Family Medical Leave Act mandates businesses with 50 or more employees to give them 12 weeks off, it does not require paid leave. However, states and municipalities may require employers to pay workers during their absence.

In San Francisco, for example, businesses with more than 35 employees must pay for parental leave. Next year, the ordinance will cover employers with 20 or more workers.

Complying with statutes is one thing, but employment lawsuits are another. With more employers offering paid parental leave, it opens up another level of compliance for companies.

It becomes a real issue for corporate counsel who draft or review employee policies. Among other concerns, they have to weigh the company's recruitment goals against legal liabilities.

Policies for "Primary Caregivers"

"Employers often shoot themselves in the foot by designing old-fashioned leave policies that undercut their recruitment and retention goals and may expose them to public relations backlash and legal liability," according to Harvard Business Review. "The most common misstep is making paid leave contingent on employees identifying as "primary caregivers."

According to writers Hilary Rau and Joan C. Williams, primary-caregiver policies are holdovers from parental leaves that were offered only to birth mothers. Times have changed.

CLASP and the National Partnership for Women and Families reports that many new company policies require employees to attest whether they are primary caregivers to receive maximum leave benefits. It raises concerns about gender neutrality, and can spark litigation.

"To reduce legal risk, companies should eliminate primary-and secondary-caregiver categories from their leave policies," say Rau and Williams.

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