Paternity leave – both paid and unpaid – provides multiple benefits for employers and employees alike.
In the U.S., both mothers and fathers have a federal legal right to take leave for the birth of a child and bonding within a year of the new child’s birth.
This right also applies when a child is placed with an employee for adoption or foster care, and the same one-year period applies. In cases involving adoption or foster care, eligible employees may use leave before the actual adoption takes place if it is needed for placement purposes. For example, an employee can use leave to travel to another country to complete an adoption.
But there are significant limitations on the federally granted right to take leave, which is established by a federal law known as the Family and Medical Leave Act (FMLA).
First, employees must meet specific eligibility requirements, and the leave is limited to 12 weeks.
Perhaps the biggest limitation: The leave granted by the FMLA is unpaid.
It’s important for HR to understand that many expecting parents still use traditional terms, like “maternity leave” and “paternity leave,” rather than “FMLA” or “parental leave” when requesting time off to welcome a new child into the family.
So, it’s up to HR to sort through federal and corresponding state laws to find all of the leave benefits available to expecting parents. And as HR knows all too well, satisfying a company’s legal obligations under the federal FMLA and related state laws can get very complicated.
When it comes to providing paid parental leave, the U.S. is a global outlier. According to research from the World Policy Analysis Center, 78% of high-income countries – and all those in the European Union – provide paid leave to new fathers. The same research shows that the majority of countries worldwide – 63% — offer some form of paid paternity leave.
Some U.S. states have their own laws requiring paid parental leave, but they are in the minority.
Providing parental leave is important and valuable for many reasons.
- It strengthens partnerships between new fathers and their partners.
- It helps partners establish their parental roles.
- It enables new fathers to develop a lifelong bond with the new family addition.
- It empowers new fathers to support the career goals of their partners.
- It boosts the happiness of new fathers, and it energizes them.
When it comes to providing paternal leave, there are clear benefits for employers, too.
As Mass Brigham General explains, providing parental leave – and particularly paid parental leave – can lead to higher retention rates, improved morale and recruiting, and less burnout. Providing paid parental leave is also likely to help employers attract – and retain — new talent.
Of course, there is a third major beneficiary when employers provide parental leave: the children for whom the leave is taken. There is plenty of research showing that giving time off to new parents provides significant benefits for child health.
A June 2022 study by the Society for Human Resources Management indicated that the number of companies that provided more paid paternity leave than legally required dropped between 2020 and the time of the study’s release. According to that study, the percentage of employers that offered paid paternity leave dropped from 44% to 27% over that period of time.
The Center for American Progress reported that at the start of 2023, only 24% of all U.S. employees had access to paid family leave.
Unfortunately for employees, this data shows a trend toward providing less paid leave for new fathers.
What exactly is paternity leave?
Put simply, paternity leave is time off from work for new fathers. This time off can be paid or unpaid. It is important because it provides multiple benefits to employers and their employees – and greatly benefits the children for whom the leave is taken.
Is paternity leave required in the U.S.?
Under the FMLA, new fathers (like new mothers) are entitled to take up to 12 weeks of unpaid leave, as long as they qualify. Some states have set their own rules about paternity leave. With very limited exceptions, federal law in the U.S. does not require employers to provide paid paternity leave.
How long should paternity leave be?
If an employee qualifies for FMLA leave, employers must give them up to 12 workweeks of unpaid leave. The leave must be taken in a 12-month period known as a “leave year.”
When it comes to defining “leave year,” employers have options. Specifically, they can choose any one of four methods to set the 12-month period for taking up to 12 weeks of unpaid leave.
The four potentially applicable leave years are as follows:
- The calendar year.
- Any fixed 12-month period, such as a fiscal year.
- A forward-looking 12-month period that begins on the first day that the employee uses FMLA leave.
- A rolling 12-month period that is measured backward from the date that an employee uses FMLA leave. When the employee takes leave, their remaining leave is the balance of 12 weeks they did not use in the prior 12 months.
This is just the legally required federal minimum for covered employers and eligible employees.
How much leave is legally required is a different question from precisely when it is best for a new father to use paternity leave. Harley Rotbart, author of No Regrets Parenting, says it is best to take paternity leave as follows:
- A couple of weeks at birth
- A few weeks during the next three months, and
- The rest between six and nine months.
In the small number of states that require employers to provide paid family leave, employees are entitled to take a period of paid leave ranging from six to 12 weeks.
Some companies offer more paid paternity leave than any law requires.
Paternity leave and the FMLA
The FMLA does not distinguish between new fathers and new mothers when it comes to the provision of paternity leave. Instead, both mothers and fathers have the same right to take FMLA leave for the birth of a child and bonding, provided they meet the applicable eligibility requirements. That means eligible new fathers are entitled to 12 workweeks of leave in a 12-month period. If a new father’s spouse works for the same employer, then the two employees are limited to a combined total of 12 workweeks of leave in a 12-month period to bond with the new addition.
Though other FMLA leave can be taken intermittently, the statute does not give new fathers (or mothers) the right to do so in connection with the birth and care of a newborn child or with the placement of a child for foster care or adoption. However, employers may agree to allow new fathers to use FMLA leave intermittently for those purposes.
Who qualifies for paternity leave?
Not everyone qualifies for paternity leave under the FMLA. Instead, only certain employers have to follow the law’s rules, and not all employees are eligible to take leave under the law. Employees have to meet specific eligibility requirements in order to be entitled to any leave under the law.
Private-sector employers must meet FMLA requirements if they have at least 50 workers in 20 workweeks for the current or previous calendar year. The weeks do not have to be consecutive, and there are specific rules about how to count employees. For a more detailed explanation of which private-sector employers are covered, click here.
In addition to the requirement that the employer is a covered employer, employees must show they are eligible to take FMLA leave.
To be eligible, employees must have worked for their employer for at least 12 months. In addition, they must have accumulated at least 1,250 working hours in the 12 months preceding the start of the leave.
They also have to work at a location that has at least 50 employees within 75 miles.
Eligible employees must be restored to the same or a similar job when they return from leave, and covered employers aren’t allowed to retaliate against eligible employees for taking FMLA leave. When eligible employees take FMLA leave, their employers must maintain their coverage under any applicable group health plan. The coverage must be maintained on the same terms as the terms that would apply if the employee did not take the leave.
Federal law in the U.S. generally does not mandate paid parental leave for new fathers (or mothers). There is a limited exception to this general rule: The Federal Employee Paid Leave Act gives certain categories of federal employees the right to take up to 12 weeks of paid parental leave in connection with a child’s placement or birth.
This paid leave is substituted for unpaid FMLA leave. Like FMLA leave, it is available to use for 12 months following the birth or placement. To use this leave, employees must agree in writing to go back to work for at least 12 weeks after the leave ends. In addition, they must sign this agreement before the leave starts.
States are free to provide more paternity leave benefits than federal law requires, but they cannot provide less. Essentially, the federal law sets a floor for the provision of paternity leave. It’s a minimum level that states can’t go below but are free to exceed.
Several states have done so, but most have not.
Developing paternity leave policies
There are several key considerations to keep in mind when developing a paternal leave policy.
First things first: If you are a covered employer under the FMLA, any paternal leave policy must be consistent with all applicable FMLA requirements. In addition, if you are in a state that sets its own additional rules about paternal leave, you must follow those rules as well.
Remember: You are always free to provide better paternal leave benefits than the law requires. And doing so can pay big dividends in the form of things like higher retention rates and improved morale.
After all, happy employees are productive employees.
So beyond making sure you comply with the bare legal minimum, what are the key considerations when developing a paternal leave policy?
First, decide exactly who is eligible. Is it all new fathers? Are part-time employees eligible? Do you want to set a service time requirement?
Beyond meeting legal requirements, there are no one-size-fits-all answers to any of these questions. You have to feasibly balance the benefits gained from offering the benefit with the cost to your business that providing the benefit entails. You need to put together a package that you can afford and support properly.
Next, think about how much leave you will offer, and whether the leave will be paid or unpaid. If you are an employer that is covered by the FMLA, you must offer 12 workweeks of unpaid leave. When it comes to paid leave, applicable state laws can be used as a basis for deciding how much paid leave to provide.
Many of those laws require between six and 12 weeks of paid leave. Of course, you are also free to provide more unpaid leave than the 12 weeks required by the FMLA.
Your policy must establish how much time an employee has to use the leave following the qualifying event. Under the FMLA, employees have a year to use their 12 weeks of unpaid leave. You can go with that for your policy, or you can set a different time period.
Make sure to set clear rules about what employees must do to prove they are eligible to participate in a leave program that gives more than the law requires. You may consider having the employee sign a statement that says that the leave is being taken in connection with a child’s birth or placement. You may also ask for documentation, such as a birth certificate or appropriate documentation from an adoption or foster care agency.
Make it clear in your policy whether employees will continue to accrue PTO during the leave period.
You’ll also need to clarify whether employees have to use other available forms of leave, such as accrued vacation, sick or general PTO time, before dipping into their paternal leave bank.
Be precise when it comes to exactly what percentage of full pay will be provided. Is it full pay, or something less?
Another area for precision: State clearly whether the leave has to be taken all in one block or can be spread out over the maximum applicable time period.
Include in your policy a requirement that your employees provide you with reasonable notice of the need for leave. A period of 10 weeks is generally reasonable, but understand that you will need to build some flexibility into setting starting and ending dates. After all, a due date for a birth is just an estimate, and sometimes precise dates for adoption can be unpredictable.
Finally, it should go without saying: Make sure you apply the policy in a nondiscriminatory way.
According to Care.com for Business, as of November 2022 Netflix was the “gold standard” for paternity leave, offering a full 52 weeks of paid leave to new fathers.
Communicating paternity leave benefits
Once your leave policy is set, it’s time to communicate it clearly and effectively to your employees.
So what’s the best way to accomplish that important task?
Remember first that clarity is essential. Use only as many words as you need to let workers know exactly what the policy entails. Focus on the benefits it provides, while also clearly and carefully setting out the policy’s essential elements as outlined above.
The core key questions to answer:
- Who is eligible?
- How is eligibility established?
- What exactly is the benefit?
If the policy is new, a good way to announce it is by using some form of face-to-face communication method with your employees. This can be an in-person meeting or a webinar. It is a good idea to have high-level management at the meeting. This shows that your higher-ups are directly invested in making your workplace a better place to work.
Alternatively, the policy can be announced to employees by email. If you choose this route, it’s a good idea to supplement the email communication with conversations between managers and their subordinates at team meetings. You want to give your employees a chance to have any questions about the policy answered to their full satisfaction. Of course, this means educating managers fully on all the ins and outs of the paternity leave policy.
Best case scenario: You communicate the policy both in person and via email. The email gives you a written record that employees were notified in writing of the policy.
Once the policy is announced, make sure it is continually and easily accessible to your employees. In the announcement, tell employees where they can access the policy going forward. It should be added to your employee handbook, and it can also be made available on an employer intranet site.
Overcommunication here is a good thing. If you use social media internally, have a company newsletter, or maintain a centralized area where notices are posted, it’s a good idea to communicate your paternity leave policy in those places as well.
Here are common concerns or questions your employees may have about your paternal leave policy:
- Am I eligible for paternity leave?
- What do I need to prove eligibility?
- How much leave do I get?
- Exactly when can I use the leave?
- Do I get full pay while on leave?
- Do my benefits stay the same while I am on paternity leave?
- Do I have to use some other leave before using paternity leave?
- How much notice do I have to give before taking paternity leave?
If you’ve done a good job putting your paternity leave policy together, it will provide very clear answers to all of these questions.
Supporting employees on paternity leave
Of course, your job’s not done when an employee begins a period of paternity leave. It’s important to support employees while they are using paternity leave – and to ease their transition back to work when their paternity leave ends.
Before the period of paternal leave begins, it’s important to communicate with the employee about who will be performing their job duties in their absence. Also make sure to discuss what needs to be taken care of before the period of leave officially begins. You want to make the transition as smooth as possible – both when employees begin their leave period and when they first return to work after the leave ends.
OK, it’s time for the period of leave to begin. What are some important things for the employer to keep in mind?
First, it’s helpful to genuinely share your employee’s excitement about the new addition. This shows that you fully support the expanding family.
Set expectations for if, how and when you will communicate with the employee while they are on paternity leave. Do they want to stay in the loop if something comes up? Do they still want to be made aware of social work events that are scheduled to take place while they are out?
Essentially, how connected to the workplace do they want to be?
These are important questions that need to be addressed and answered before the leave period begins.
Another option: The employer and employee agree to have set check-in dates and times, such as a weekly morning meeting, to provide the employee with status updates.
When it’s time for the employee to return to work, you should consider easing the transition by offering flexible hours if possible. For employees who typically report to the office to work, offering the ability to work a day or more from home at the start may be a viable option. The level of flexibility will depend largely on the nature of the work. But if it’s a feasible option, employers should consider it.
Want to really go above and beyond? Then consider assisting with access to daycare when it is needed, such as by forming partnerships with daycare providers and/or offering to cover part of the cost of daycare. Do you have the ability to offer daycare on site? Even better!
Generally, it’s important to welcome employees back to work when they return. They want to feel valued – and don’t want to feel like their absence just proved they are easy to replace.
Should you offer paid paternity leave?
There are plenty of good reasons to offer paid paternity leave beyond any paid leave that is legally required. Doing so provides substantial benefits to employers, employees, and the children for whom the leave is taken.
For employees, paternity leave strengthens partnerships and helps parents establish parental roles. It enables new fathers to bond with their children and to support the career goals of their partners. And it energizes and boosts the happiness of new fathers.
For employers, there are substantial benefits in the form of better retention, increased morale and less burnout. Providing paid parental leave can also help attract new talent.
The children for whom the leave is taken are big winners, too, because the leave is likely to reap big health benefits for them.
A few final thoughts
Let’s state it very simply: Happy employees are more productive employees, and getting paid paternity leave makes employees happy.
The advantages of providing extended paternity benefits are clear and measurable.
It’s a perk that should be strongly considered because of the significant benefits it provides.