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

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Fairygodboss

Updated: 2/22/2022

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 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 dads 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 receive Family and Medical Leave Act 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 via the U.S. Department of Labor.

What States Offer Paternity Leave?

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 leave or paternity leave (up to some cap). But as of 2022, the only states that require paid paternity leave New York State, California, New Jersey, Rhode Island, Washington state, and Washington, D.C.

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 25% of private employers fund paid paternity leave programs. 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 2022, there were 270 employers in the database that offered at least one week of paid leave for fathers. Some additional employers offered unpaid leave to new dads.

The only way to be sure that you do not qualify under a parental leave policy 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-time employee benefits during this period.

If you are taking paternity leave under FMLA, one definite paternity benefit is that 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 family or medical leave rights.

When and how should I request leave?

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

When can I take my paternity leave?

Legally, if you are using FMLA leave, you may take time off at any time during your partner’s pregnancy or even after childbirth (within one 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.

How Can I Request Paternity Leave?

First things first, know your company policy. If you are not sure what the policy is surrounding paternity or parental leave at your organization, look to your employee handbook or talk to an HR representative.

It’s also important to know how long you will need off, and when you will need to begin your leave. This is vital because you will need to give your employer enough notice so that they can prepare.

Depending on the policy at your organization, you may be required to give 30 days notice before taking leave. It is also possible that you may need more time than is allotted. This is why it is vital to have all the facts about the leave you will need to take and what your employer will allow. You may be able to negotiate extra time or take vacation/sick days.

But it is also possible that your request will be denied if your company doesn’t have a policy in place, or if you request more time than is generally allowed. This is why it is also important to understand your rights under FMLA.

What if my employer doesn’t offer leave and I don’t qualify for FMLA?

This might be the case if you are working for a small company that isn’t required to offer FLMA, or if you are only working part-time. If this is the case, it is still a good idea to talk to your employer about your situation and why you need this leave. It may be possible that your employer will grant you a leave-of-absence during this time.

If you are in this position, come up with a plan and a timely timeline for when you will need to be absent and why. You are more likely to have your employer sign on if you are clear and upfront about your needs from the start.

What does the future of paternity leave in the U.S. look like?

There’s a possibility that the state of paternity leave — and maternity leave too, for that matter — may change in a pretty significant way for Americans in the near future.

Back in May 2017, senior White House aides revealed that former president Donald Trump’s first detailed budget request — titled, in uber-Trump fashion, "A New Foundation for American Greatness" — will include the seeking of funds to create a mandatory paid parental leave program, inclusive of both birth and adoptive mothers and fathers. The news came as a surprise to many, considering the subject of paid leave for U.S. employees has long been opposed by Republicans and seemed at odds with the rest of Trump’s proposal, which was intent on eliminating government spending on nondefense measures.

The creation of such a program would have been a huge victory for U.S. working parents and their work-life balance. Unfortunately, it didn't happen during the Trump era. But, now amid the Biden administration, paid parental leave could finally pass.

1. President Trump’s proposed program would grant both mothers and fathers six weeks of paid leave after the birth or adoption of a child — a significantly more inclusive arrangement than what was outlined in the First Daughter’s book. (Initially, her advocations for paid leave extended to biological mothers only.) While the program never came to fruition during Trump's time in office, at least it was a conversation.

2. Currently, out of 185 countries surveyed by the United Nations, the U.S. stands out as one of only two countries to not mandate paid maternity leave. The other country is Papua New Guinea.

3. The U.S. is the only country among 41 nations that does not require companies to offer any paid leave for new parents, according to data that was compiled by the Organization for Economic Cooperation and Development (OECD).

4. Today, nearly one-fourth of American women are back at work just 10 days after giving birth, which can have negative (and costly) effects on both mother and child. Mandatory paid maternity and paternity leave would prevent that.

5. Even still, six weeks is on the skimpier side of international paid leave policies. For comparison, mothers in Finland can start their maternity leave seven weeks prior to their due date, and that’s on top of 16 additional weeks of paid leave post-birth. The country also offers eight weeks of paid paternity leave.

6. President Joe Biden’s new family plan prioritizes family and medical leave. As part of his American Families Plan, Biden is proposing 12 weeks of paid leave for all new parents; caregivers of sick family members; survivors of sexual assault, stalking, and domestic violence seeking a safe environment; and people who need the time to recoup from an illness. The plan, if t passes, will allow workers to recoup between 66 to 80 percent of their wages, capped at $4,000 a month, and it's estimated to cost approximately $225 billion across 10 years.

7. As part of Biden's proposal, the full 12 weeks of paid leave is not anticipated to completely roll out until the 10th year of the program.

How does paternity leave impact company culture?

Paternity leave impacts company culture for the better. Offering paternity leave to new fathers sets the precedent that the workplace values gender equality and work-life balance. It also creates a culture of respect. When both parents, moms and dads, can spend time with their children, it sends a message to all employees that their roles as both employees and parents are highly regarded and respected. After all, it's equally as important for men to spend time with their newborns as it is for women to spend time with their newborns. So it only makes sense to allow both parents equal amounts of time off to do just that.

Plus, offering paternity leave breaks down outdated traditional gender stereotypes that suggest that only women should take time off of work to raise children. Paternity leave makes it socially acceptable for any parent to take the time off that they need to bond with and care for their growing families. It also levels the playing field for people coming back from parental leave, since growing research indicates that many women face discrimination upon returning to the workplace after maternity leave. If everyone takes the time off, both men and women, then perhaps there will be less discrimination upon their return.

Never mind that studies show that parental time is crucial for children, and when people get to experience a healthy work-life balance between their jobs and their family obligations, they're more satisfied. More satisfied workers perform better. It's a win-win for everyone.

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