Equal Time for Dad?

While hospitals continue to use identical iconic blue and pink striped blankets to wrap newborns, the laws granting women and men job-protected time off to care for those babies keep changing. And now there’s a new development.

Federal and state maternity laws have been in place for many years. For two decades, the Family and Medical Leave Act (FMLA) has required employers to offer men and women 12 weeks of job-protected leave to care for and bond with a newborn baby or a recently adopted child. Those protections apply to people working at companies with 50 or more employees. In recent years, that law and the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) have extended protections for pregnant women by lowering the threshold for showing that a medical condition is a disability.

Now, there is a new twist relating to men and smaller employers, an important change in the Granite State, which is dominated by employers with fewer than 50 employees.

Diaper Duty Changes

Last July, the Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance subtitled Pregnancy Discrimination And Related Issues (herein called Guidance) that has important implications for men. The Guidance is not a law, but it will be considered by both the EEOC and courts when faced with pregnancy discrimination matters.

The Guidance primarily addresses the interplay between the ADAAA and the Pregnancy Discrimination Act of 1978 (PDA). The PDA prohibits discrimination based on pregnancy, childbirth and related medical conditions. It requires among other things, employers to provide pregnant women and new mothers with the same leave benefits as other medical conditions, and requires their job be held as it would for other employees on sick or disability leave.

Unsurprisingly, the PDA does not discuss rights of male employees, given they do not personally experience pregnancy or childbirth. It is something of a surprise, then, that the Guidance announced last summer that the PDA entitles male workers to parental leave in certain circumstances. 

Dad’s Rights

Both the Guidance and its related question and answer section say that while leave related to pregnancy and childbirth can be limited to women, parental leave must be offered to men and women on the same terms.

“If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (…to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.” 

According to the Guidance, the PDA obligates employers with 15 or more employees to offer parental leave to men, at least where non-medical leave is offered to women. The Guidance provides two examples to illustrate the traps for the unwary employer. First, it would be acceptable for an employer to grant a period of leave only to female workers for pregnancy-related medical issues, but then provide a period of leave for both parents to bond with the child. However, it would be unlawful for an employer to offer female workers a period of paid leave beyond medical leave to bond with and care for their new baby without offering a leave of that same duration and on the same terms to fathers.

Once again, the Guidance is not a law and is not enforceable, but as it will be considered in discrimination cases, it has significance to employers who offer paid parental leave only to female employees. And this is likely not the end of the story. The United States Supreme Court could narrow the Guidance when it issues a decision in a pending pregnancy discrimination case later this year (Young v. UPS). 

Employers should continue to monitor this area of law. In the meantime, small employers who choose to offer leave beyond the period of temporary physical disability resulting from pregnancy or childbirth, and large employers who offer more than the required 12 weeks of FMLA leave to eligible employees, should review their policies carefully. The best practice is to ensure that workplace policies draw a clear distinction between medical leave and parental leave, but make no distinction based on the gender of the employee seeking time off to bond with or care for a child. To read the EEOC Guidance, visit www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

James P. Reidy and Karen Whitley are employment attorneys with Sheehan Phinney Bass + Green, with offices in Manchester and Boston. For more information visit sheehan.com.