Paternity Leave 101: Laws, Rights, and Other Basic Things You Should Know

paternity leave

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Matt* is an architect, and a new dad to an adorable baby girl in Brooklyn, New York. He recently shared with us that he went to his employer and told them he and his wife were expecting a new baby and wanted to know what his paternity leave was. Their response? “We follow the law.”

This was a frustrating response since Matt didn’t know exactly what the law was. So he went looking online for information which is how he found us. This article is dedicated to Matt (*whose name has been changed) and all the other fathers, fathers-to-be and their partners looking for information about paternity leave.

What is paternity leave?

What people refer to as paternity leave is the period of time when a father stops working because he is about to have, or has just had (or adopted) a baby. Sometimes this is called family leave or parental leave because this leave can apply to both mothers, fathers, or domestic partners. A company may or may not have an official paternity leave policy, and paternity leave can either be paid or unpaid. Typically, however, in the United States, new fathers do not receive paid time off after the birth of a new child.

What paternity leave rights do I have?

Most American fathers receive no pay during the period after their child is born. New parents (of any gender) rely on federal law (called the Family and Medical Leave Act or FMLA) to protect their job for up to 12 weeks after a birth or adoption. This means that new fathers are entitled to return to their positions after a period of absence without penalty in pay or position. To be clear, FMLA does not guarantee any pay during this 12 week period.  Also, FMLA does not apply to everyone. FMLA offers job protection during your time off if you qualify, i.e. if you work at a company with more than 50 employees within 75 miles of your workplace and you have worked there a minimum of 1,250 hours during the prior year. There are a few more requirements that must be met to receiving FMLA protections (e.g. if you have a spouse working at the same company who also tries to qualify for leave under FMLA things are more complex).  You can read more about FMLA rules and exceptions on the U.S. Department of Labor’s website.

In addition to federal law, 25 states have supplemented FMLA protections by providing either longer leave (e.g. up to 16 weeks), lowering the minimum employer size to below 50, or even requiring private employers to pay for maternity or paternity leave (up to some cap). You can read more about state laws that may impact you or your partner in California, New Jersey, Rhode Island and New York state.

What Is my company’s paternity leave policy?

There is no perfect data on how many private employers cover paternity leave (on either a paid or unpaid basis). We do know that approximately 16% of private employers fund paid paternity leave programs based on a 2010 benefits survey from the Society for Human Resource Management. Fairygodboss has crowdsourced a range of corporate policies for thousands of companies from our members. Paternity leave is a feature of the parental leave database and as of 2016, there were 160 employers in the database that offered at least 1 week of paid leave for fathers. Some additional employers offered unpaid leave to new dads.

The only way to be sure that you don not qualify for paternity leave on a paid or unpaid basis is to ask your HR department or benefits administrator for information. Sometimes, your employee handbook will also include this information. Remember, that while there may be an official policy about leave, you can always try to negotiate for more time or some pay during your time off (which is especially the case if you plan to continue working part-time).

Do I receive benefits while I’m on paternity leave?

Most companies that offer fully-paid paternity leave typically cover your other full employment benefits during this period. 

If you are taking paternity leave under FMLA, your company must continue to keep you on its health insurance plan while you're on leave. However, the company has the legal right to ask for the reimbursement of your health insurance premium payments if you do not return after your FMLA leave. Also, FMLA doesn't require employers to allow you to accrue benefits or time toward seniority when you're out on leave. That means the clock may stop on things like vacation accrual and the amount of time you can say you've been with the company in order to qualify for things like raises based on seniority, participation in your company's 401k plan or the vesting of your company's matching investment, or stock options. Finally, you won't be able to contribute to your 401k or flexible spending account while you're on leave because you're not receiving a paycheck from your employer and thus can't contribute pre-tax dollars.

What if I'm adopting a child or taking in a foster child?

Some employers will offer adoptive parents identical or similar policies as those given to birth parents. Under FMLA, you are allowed to take 12 weeks of unpaid leave for the adoption of a child. And again, depending on where you work, certain states will offer you some sort of parental leave rights.

When and how should I request leave?

For those who work for one of the few employers who take paternity leave, this is largely a personal decision or may even require following the processes of your individual employer. Under FMLA, you are required to request paternal leave with at least 30 days advance notice.

How do I decide when to start my leave?

When can I take my paternity leave?

Legally, if you are using FMLA leave, you may take time off at any time during your pregnancy or even after childbirth (within 1 year of your child's birth). Some new fathers may want to take their paternity leave after the child’s mother has exhausted hers since certain things may not be feasible for a new dad (e.g. breastfeeding). 

The other two factors to consider are your household finances and the amount of physical labor or stress your job entails. Taking care of a newborn is an exhausting 24/7 job that usually entails sleep deprivation. If you decide to take an early paternity leave due to your partner’s medical condition or simply because you want to be there for the initial days of your baby’s new life, you have every right to take FMLA right after the birth of your child. Keep in mind that if you plan on negotiating for more leave, or leave that’s not in one block of time (e.g. two weeks initially after the birth of your child followed by 10 weeks after your child’s other parent has returned to work), you may need to work this out with your employer. You may also be required by your employer to use your paid time off, such as your sick days and vacation days before you are entitled to FMLA leave.


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