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  • FMLA: Paternity Leave Not Just for Princes

    With news about the new royal baby, Prince William’s scheduled two-week paid paternity leave from the Royal Air Force has reignited a debate about social stigmas of stay-at-home dads and men who take off from work for the birth of their children. After all, so goes the argument, men aren’t the ones giving birth, why do they need time off?

    Studies have shown that the first few months of a newborn’s life are a critical time for bonding between the child and its parents. Thus, fathers who choose not to take an extended leave after the birth of their child are missing out on critical moments that they may never get back. Despite equal parenting responsibilities, stereotypes of men as the “breadwinners” makes men who chose family over work appear inferior and less masculine in the eyes of society and their peers. Paternity leave in the United States is taken much less often than maternity leave and only around 15 percent of companies in the United States offer some form of paid paternity leave.

    Enacted in 1993, the Family and Medical Leave Act (“FMLA”) (the “Act”) is a federal law that requires many employers to allow their employees (male and female) twelve (12) weeks of unpaid family-leave after the birth or adoption of a child. The Department of Labor defines a son or daughter as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and ‘incapable of self-care because of a mental or physical disability’ at the time that FMLA family-leave is to commence.” Thus, it should be noted that, unlike many maternity and paternity leave plans offered by companies, FMLA family-leave is not exclusive to parents who have just conceived or adopted a child.

    If an employer is covered by the FMLA, its employees are eligible for unpaid leave under the FMLA if 1) they have worked for their employer for at least 12 months, 2) during those 12 months, the employee worked for at least 1250 hours, and 3) an employee works at a location where the employer has at least 50 employees within 75 miles of the worksite.

    At the conclusion of this leave, employers must allow the employee to return to his or her job, or an almost identical job, with the same salary, benefits, working conditions, and seniority. However, if an employee takes a leave that is longer than permitted under the FMLA, then the employer is not obligated to restore the employee’s position.

    Additionally, family leave must be taken within one (1) year of the child’s birth, or placement and as one continuous block unless the employer agrees to an alternative.

    However, an employer can deny an employee this leave if the employee holds a salaried position in the highest paid ten (10) percent of wage earners at the company and if the employer can prove that the absence of the employee would cause significant economic harm to the business.

    Also, if both parents work for the same company, they are only entitled to a total combined leave of twelve (12) weeks.

    Aside from family-leave under the FMLA, employees may also be entitled to longer and/or paid leave under state or company regulations. Depending on the company, this leave may either count towards the twelve (12) weeks allotted by the FMLA, or may be in addition to these twelve (12) weeks.

    Moreover, if an employer denies an FMLA-eligible employee his or her family-leave for reasons other than the exceptions included in FMLA’s regulations, legal action may be taken against that employer and the employer can be sued for their refusal. Employers should be aware of all FMLA regulations and which employees are eligible for leave under this Act.

    However, research shows that even when employers have paternity leave plans in place, few men take advantage of it because of negative stereotypes regarding stay-at-home dads and men who work part time to care for their children. While working mothers are often the brunt of gender-based stereotyping, unfounded assumptions about working fathers and other male caregivers have occasionally led to harassment or other disparate treatment. There is also the age-old belief that a man could never be as adequate a parent or caregiver as a woman. This baseless theory has caused some employers to deny male employees’ requests for leave for childcare purposes, even if that same leave is granted for female employees.

    Perhaps, Prince William’s recent paid paternity leave for the birth of his new son will prove that family leave is not just for women, and that fathers have the same responsibility to their children that mothers do. Thus, new parents, especially new fathers, should know that taking family-leave is not only an option, but for many it is also a legal right.

    If you or your company would like more information on employment law, please e-mail Justin F. Capuano at jcapuano@cullenanddykman.com or call him at (516) 357-3708.

    A special thank you to Cathryn Ryan, an intern at Cullen and Dykman LLP, for her assistance with this blog post.