By Jeff Jones
Special to the UCBJ
Paid time off to bond with a newly arrived infant is a wonderfully generous (and rare) benefit, but it can also get a well-intended employer into trouble. In 2016, according to the Bureau of Labor Statistics, only 14% of civilian employees had access to paid family leave in the United States. See http://www.pewresearch.org/fact-tank/2017/03/23/access-to-paid-family-leave-varies-widely-across-employers-industries/. The United States stands alone among all industrialized nations as the only country which has no paid parental leave of any kind. See https://www.oecd.org/els/family/PF2_5_Trends_in_leave_entitlements_around_childbirth.pdf. California, New Jersey, New York and Rhode Island currently offer paid family and medical leave funded through employee-paid payroll taxes and administered through their state disability programs. Washington passed a paid family leave law in 2007, but the law was never implemented, and its implementation has been indefinitely postponed.
If an employer provides “parental leave” benefits and the policy distinguishes between men and women, at the very least if the leave is for “bonding” as opposed to “medical leave,” it is time for redrafting. Cosmetics giant Estee Lauder previously provided paid medical leave for recovery from childbirth and then 6 weeks of “bonding” leave for female employees but only 2 weeks of paid “bonding” leave for males. The Equal Employment Opportunity Commission (EEOC) sued, and the company settled in July of 2018 for $1 million to more than 200 male workers. In May of 2018 the company revised its policiesto provide all eligible full-time employees, regardless of gender or caregiver status, the same rights to 20 weeks of paid leave for the purposes of child bonding and a six-week flexibility period to return to work from parental leave. A similar claim filed in 2017 by the American Civil Liberties Union and Outten & Golden targeted JPMorgan Chase & Co.’s policy that gave “secondary caregivers” less paid leave than primary caregivers, and considered “birth mothers” presumptive status as primary caregivers rather than fathers. That claim is still pending before the EEOC as of this time.
If an employer chooses to provide paid parental leave, the safest course of action would be to simply provide a maximum amount of paid time to males and females for the birth or placement of a child for adoption. If an employer desires to provide additional paid medical leave for the purpose of recovery from childbirth, the policies should clearly distinguish between the two. Court cases addressing paid parental leave are few. In 2005, the U.S. Court of Appeals for the Eighth Circuit ruled against a father who challenged a policy allowing biological mothers and adoptive parents to use accumulated sick leave upon arrival of a new child without extending the same benefit to biological fathers under a medical disability policy. Notably, adoptive parents of both genders were permitted to use sick leave for a bonding period (albeit for a briefer period of time than for childbirth recovery). Johnson v. University of Iowa, 431 F.3d 325 (8thCir. 2005).