What is FMLA Paternity Leave?

According to the Family and Medical Leave Act of 1993 (FMLA), paternity leave is defined as the amount of time a man takes off work for the birth, adoption, or placement of a child.

Paternity leave is almost never paid, although a few progressive companies are offering new fathers paid time off lasting anywhere from a few days to a few weeks depending on company policy.

Even though paternity leave is rarely available, most dads use accrued vacation time or sick days when a new child is born or adopted. In fact, a growing number of new fathers are turning to unpaid family leave as a way to spend more time with their growing families.

Paternity leave has become a major topic of conversation lately when Daniel Murphy, the New York Mets' second basemen, took three days of paternity leave after his son was born. The decision resulted in him missing two games, including the opening game of the season.

Unfortunately, there was a lot of public criticism surrounding the baseball player's paternity leave. The resulting media controversy has had some employers considering the kinds of leave options that should be available to new fathers, if any.

Nearly all fathers rank their kids as a top priority in their life, and the majority want to spend more quality time with their children.

Regarding paternity leave, however, most dads only take one day of parental leave for the birth of a child. Only a quarter take more than a week off work.

How to Determine if You're Entitled to Unpaid Leave

Under the Family and Medical Leave Act (FMLA), federal law requires many employers to provide both male and female employees with 12 weeks of unpaid family leave after the birth or adoption of a child.

According to FMLA, an employer must allow you to return to your job at the end of paternity leave. The employer must also provide the same working conditions, salary, benefits, and seniority you had before you left.

You are eligible to take FMLA if you meet these conditions:

  • you work for the local, state, or federal government, a private or public school, or a company with 50 or more employees who work 20 or more workweeks per year
  • you have worked for your current employer for at least one year and have worked at least 25 hours per week for 50 weeks during the previous year

However, if you are among the highest paid 10 percent of earners at your employer (also known as a "key employee") and your supervisor can provide proof that your paternity leave would damage the company economically, then you can be denied being restored to your previous position following the paternity leave.

Those considered "key employees" should make it a point to know what their status will be when returning to work from leave, whether that leave is paid or unpaid.

Another thing to consider: if both you and your spouse or partner are employed by the same company, you are only entitled to 12 weeks of parental leave between the two of you.

Those not eligible for parental leave under FMLA may still be eligible under state provisions, which can often be more generous than federal regulations. You may also want to check your company's policy regarding leave.

Some states and individual employers may allow you to take the full 12 weeks of FMLA leave on top of whatever paid leave you have already taken.

You can also use unpaid leave any way you would like during the first year of your child's life or placement with your family. This means that you can take parental leave all at once in a single 12-week increment, or you can spread it out in chunks over the first year for doctor visits, illnesses, and other unexpected situations that occur in a new dad's life.

What Happens to Your Benefits While You're Out on Leave?

According to the FMLA, an employer is required to keep an employee on his health insurance plan while he's away on paternity or parental leave. In some cases, your employer will pay your premiums but ask for reimbursement, which is generally taken out of your paycheck.

In the event that you lose your job while out on leave, or if you decide not to return to work, your employer will likely stop paying your health insurance premiums and put you on COBRA. COBRA is a program that continues your coverage under the same plan, but you alone are responsible for paying the premiums.

The FMLA does not require companies to allow employees to accrue time toward seniority or benefits while out on leave.

The clock may also stop on the amount of time you can say you've been with the company. This can affect your:

  • length of service
  • vacation days
  • participation in the employer's 401(k) plan
  • company-matching investment
  • company stock options

Paternity Leave for Fostering or Adopting a Child

It is against the law for an employer to discriminate against any employee who chooses to take parental leave for fostering or adopting a child.

To figure out how taking paid or unpaid paternity leave plays out at your company, speak with coworkers and bosses who have taken leave in the past.

How and When to Request Paternity Leave

Federal guidelines state that you should request parental leave at least 30 days before you intend to take it. It's always best to give your supervisor as much notice as possible.

Try to discuss taking paternity leave with your boss as soon as you announce the pregnancy or have been selected to adopt a child.

What to Do if Your Employer Denies Your Paternity Leave Request

Most employees qualify for parental leave under state provisions, company policy, or the FMLA. If you know for sure that you're entitled to take leave and you have given the required amount of notice, gently remind your employer of your legal rights.

If this doesn't work, contact your regional Labor Department's Wage and Hour Division office to file a complaint. The Labor Department will investigate your complaint and verify whether you're entitled to leave and pursue legal action if necessary.

What if You Don't Qualify for Leave Under the FMLA?

Employees who work part-time do not qualify for parental leave under FMLA. In some cases, a company may not even provide leave options for new parents.

Even so, some employers will be open to negotiate with valued employees, even if it means taking some other form of leave.

If you're a member of a labor union, speak with your manager or union representative regarding parental leave qualifications under union rules.

Making the Most of Time With Family When Paternity Leave is Unavailable

When taking paternity leave is not available, discuss other options with your boss. You might be able to work extra hours leading up to the birth in exchange for some time off once the baby arrives.

In some cases, you may need to perform parental responsibilities on days or nights when you're not working or don't have to be up early the next day.

Additional Information on Paternity Leave

For more information on family leave policies and the FMLA contact the U.S. Department of Labor's Wage and Hour Division.

States That Require Employers to Provide Unpaid Paternity Leave

California requires all public-sector employers and private employers with 50 or more staff members to offer up to 12 weeks of unpaid family leave.

Connecticut requires employers with 75 or more employees, with the exception of private schools, to offer up to 16 weeks of unpaid parental leave during the first two years of birth, adoption, or placement in foster care.

The District of Columbia requires employers to offer up to 16 weeks of unpaid leave in a two-year period.

Hawaii mandates that private employers with 100 or more staff members offer up to four weeks of unpaid leave per year.

Illinois has the Small Necessities Leave Act, which requires its employers to offer up to eight hours of leave per school year, but no more than four hours in a single day, to attend activities at a child's school. This is only applicable when no other type of leave is available.  

Louisiana requires employers to offer up to 16 hours of annual leave at the employer's discretion for the purposes of attending a child's educational activities.

Maine requires that all state employers, local governments with 25 or more employees, and private employers with 15 or more employees offer up to 10 weeks of leave within a two-year period for the birth or adoption of a child not over the age of 16.

Massachusetts mandates that employers with 50 or more employees provide up to 24 hours of annual leave for attending a child's school or to take a child to regular doctor's appointments.

Minnesota requires all employers with 21 or more staff members to offer up to six weeks of leave for adoption or birth.

In Nevada, it is illegal for any employer to fire an employee for attending school conferences or for leaving work after being informed of a child's emergency.

New Jersey requires its employers with 50 or more employees to offer up to 12 weeks of unpaid leave in a 24-month as long as, within a single year, the leave does not exceed a maximum of six weeks. This leave can be taken to care for a child after birth or adoption.

North Carolina requires its employers to offer workers considered to be parents or guardians a maximum of four hours of leave each year to attend a child's school activities.

Oregon requires employers with 25 or more staff members to offer up to 12 weeks of unpaid leave annually.

Rhode Island mandates that all state government employers, local governments with 30 or more employees, and private employers with 50 or more employees to offer up to 13 weeks of leave following the first two years of a child's birth or adoption.

Vermont requires employers with 10 or more employees to offer up to 12 weeks of annual leave for birth or adoption.

Washington mandates that all employers provide up to 12 weeks of leave during any one-year period for the birth, foster placement, or adoption of a child.

Wisconsin requires all employers who employ at least 50 permanent workers, including the state government entity, to offer up to six weeks of leave for a child's birth or adoption. Wisconsin also provides up to two weeks of leave for parents of a child with a severe health issue.

States That Offer Paid Paternity Leave Benefits

The California Paid Family Leave insurance program entitles parents to up to six weeks of paid leave for bonding with a new child or caring for a seriously ill child.

New Jersey Temporary Disability Benefits Law's Family Leave Insurance provision provides cash benefits that are payable for up to six weeks, giving parents time to bond with a newborn or newly adopted child.

Rhode Island's Temporary Caregiver Insurance Program offers four weeks of paid leave for the birth, foster placement, or adoption of a child.

Determining a Company's Paternity Leave Policy

No data exists that shows in perfect detail how many private employers offer paid or unpaid paternity leave.

Available information from the Society for Human Resource Management does show that about 16-percent of private employers cover the costs of paid paternity leave programs.

In some cases, your employee handbook will include information related to the company's parental or paternity leave policy.

The Future of Paternity Leave in the United States

It is possible that paternity leave might change in the near future. In May 2017, senior White House aides revealed a budget request seeking funds to cover a mandatory paid parental leave program. If passed, this program would cover both mothers and fathers. Ivanka Trump is said to spearhead the program.

Only time will tell whether paid parental leave, paternity as well as maternity, will become available in the United States.

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