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New Leave Laws for New Dads

Massachusetts employers will soon be required to provide unpaid paternity leave to male employees. The question now, experts say, is not whether more states will follow suit, but whether employers and HR will eventually be obliged to offer paid leave to new fathers.

Wednesday, April 1, 2015
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Effective April 7, new fathers in the state of Massachusetts will join mothers in being able to take time away from work to care for newborn and newly adopted children.

Signed into law in January by then-Massachusetts Governor Deval Patrick, An Act Relative to Parental Leave-commonly referred to in the state as MPLA-amended the Massachusetts Maternity Leave Act, which provided eight weeks of unpaid leave strictly to female employees.

While the Family and Medical Leave Act entitles employees to up to 12 weeks of unpaid leave for the birth or adoption of a child, the law only applies to businesses with more than 50 employees, and employees must have worked a minimum of 1,250 hours and been with the company for one full year to qualify for FMLA leave.

Applicable to Massachusetts employers with six or more employees, the MPLA provides parental leave to male employees who have completed their employer's initial probationary period-not to exceed three months-or have been employed for at least three consecutive months as a full-time employee, whichever is less. While parental leave is unpaid, the employer may provide paid leave at its discretion.

The enactment of this legislation in Massachusetts is indicative of a larger movement taking shape at the national level, according to Nancy Puleo, a Boston-based partner in Posternak Blankstein & Lund's employment law and healthcare practice groups."The trend is to expand family-friendly employee leave benefits," says Puleo. "In fact, some states already have their own 'mini' FMLA laws, which apply to smaller employers than those covered by the FMLA, and are drafted in a gender-neutral fashion similar to the FMLA."

Anecdotally speaking, Puleo says, she's seen mid-sized and large employers staying ahead of the law with respect to offering parental leave to both male and female employees. "For this reason," she says, "I expect the individual states to follow suit, particularly since the United States as a whole is behind most other advanced economies and developed nations when it comes to family leave > benefits."

Looking beyond Massachusetts, however, the larger issue for employers and HR may not be whether more states and cities enact similar legislation, but whether their organizations will ultimately be required to provide paid leaves of absence to male employees, says Cindy Minniti, a New York-based deputy office managing partner at Reed Smith.

Currently, just 12 percent of employers offer paid paternity leave to employees, according to the 2014 Employee Benefits Survey of 510 HR professionals conducted by the Alexandria, Va.-based Society for Human Resource Management. In the same poll, SHRM found the share of companies offering paternity leave actually decreasing since 2010, when the number of organizations providing the benefit stood at 17 percent. And, looking ahead, just 1 percent of respondents to the SHRM survey said their companies planned to start offering paid paternity leave in the coming year.

We may, however, soon start to see a reversal of this trend, says Minniti.

"The push for parental and < family leave > has gained enormous support in the past few years, as conventional notions regarding caretaking responsibilities are being challenged," she says, noting that New York is considering a bill that would provide up to 12 weeks of paid "family care" leave. (California, New Jersey and the District of Columbia are among the states and municipalities already providing paid < family leave to both new mothers and fathers.)

And, it seems most male employees would like to see their states follow a similar legislative path.  

The Boston College Center for Work & Family recently asked 1,029 fathers from 286 organizations how important paid paternity leave for fathers would be to them if they were considering a new job and were contemplating having another child at some point in the future.

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Overall, 89 percent of the dads surveyed said it was important for employers to provide paid paternity or paid parental leave. More specifically, 60 percent of these respondents indicated it was "extremely" or "very" important, with 29 percent saying they felt it was "somewhat" important.  

Of course, those employers that are already providing some length of paid maternity leave must now decide whether to extend the same benefit to male employees. Those that don't offer a paid leave benefit to male employees, or offer them a less-generous benefit than that given to female employees, open the organization up to sex discrimination claims, says Puleo.

One solution to this potential problem, she says, is to offer the paid leave benefit to the primary caregiver, which is gender-neutral.

Companies in other states may indeed consider revising parental leave policies, "to the extent other states limit parental leave to female employees only," says Cathy Stamm, a legal consultant in New York-based Mercer's Washington Resource Group.

Massachusetts has "been cautioning employers for several years that limiting the leave to female employees could be viewed as discrimination based on sex, even though that's the way the statute is written," says Stamm. "This change aligns the statute with the state's long-held stance on non-discrimination."

In a broader sense, companies should also train managers on how to address requests for, and questions about, parental leave and pregnancy, adds Minniti, "especially given the EEOC's recent focus on the rights of pregnant workers."

Moreover, employers throughout the U.S. that don't intend to reinstate employees who request parental leave lasting more than eight weeks must be sure to communicate this prior to the leave's commencement, says Minniti, adding that employers with more than 50 employees may be in violation of the FMLA's reinstatement requirements if they go that route.

Ultimately, however, Puleo says the most critical challenge for HR with respect to parental leave is in "foster[ing] a work environment where the culture supports male employees who take what has traditionally been leave for female employees."

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