Q: What should an employer include in a parental leave policy?
A: Parental leave policies can vary widely from employer to employer, as the United States is one of the few developed countries with no federal law requiring employers to provide paid leave for sick days, vacation, or family care. The Family and Medical Leave Act (FMLA) outlines requirements for companies of 50 or more employees (located within 75 miles of an office) to provide up to 12 weeks of job-protected unpaid leave over the course of a 12-month time period. The employee must be full time and have worked at least 1,250 hours for the employer prior to taking leave. A handful of states provide for additional leave, and in some cases paid leave.
Employers should implement a parental leave policy to clearly outline the parameters of any parental leave offered to employees. In creating a policy, employers should consider the following in preparing a comprehensive and non-discriminatory policy.
Provide the Policy's Purpose and
Scope
Employers should be clear as to the benefits they are providing. A
clear and concise statement setting forth the employer's intent
sets the groundwork for how the employee understands this
additional benefit.
Know the Rules of Your State
Review your state's laws and regulations on leave, paid and
unpaid, to ensure that you are in compliance. A number of states
require varying levels of paid leave, including New York and the
District of Columbia, which provide two of the most expansive leave
policies in the country.
New York
New York State's Paid Family Leave law provides employees with
up to 12 weeks of paid, job-protected leave equal to 67% of their
average weekly wage (capped at 67% of the New York State Average
Weekly Wage). For 2025, the maximum weekly benefit is $1,177.32.
Employees who work 20 or more hours per week are eligible for
coverage after 26 consecutive weeks of employment. Those employees
who work less than 20 hours per week are eligible after 175 days.
The law provides an employee leave to bond with a newborn, adopted,
or fostered child within the first 12 months, as well as time to
care for a family member with a serious health condition. This
leave applies to all parents regardless of gender.
As of January 1, 2025, New York also provides paid time off for prenatal care or any medical care related to pregnancy. Any employee is eligible to receive an additional 20 hours of paid sick leave for prenatal care.
District of Columbia
DC's Paid Family Leave law provides employees with up to 12
weeks per year of paid, job-protected leave with a weekly benefit
amount based on weekly wages. The current maximum weekly benefit
amount is $1,153.00. The law provides employees with parental leave
if (1) a biological child was born in the past year, (2) a child
was placed with them for adoption in the past year, (3) a child was
placed with them for foster care in the past year, and (4) the
employee legally assumed parental responsibility for a child in the
past year. This applies to both parents.
DC also provides up to two additional weeks of prenatal leave. This benefit applies only to pregnant individuals who have a medically related need for leave related to their pregnancy. For example, an employee can use this leave to attend prenatal checkups with their doctor, receive any kind of pregnancy-related medical treatment, visit a doctor for a diagnosis related to the pregnancy, and remain on bedrest due to pregnancy-related conditions (if ordered by a doctor).
If employees reside in multiple states, make sure policies are in compliance with each state in which an employee is eligible. An employer should begin the policy by listing the benefits required by FMLA and state leave laws. The policy can then build off those requirements if the employer wants to offer a more generous plan.
Consider Other State and Federal Laws That May Affect
Leave
FMLA and certain states' parental leave are not the only
potential applicable laws related to an employee's parental
leave. For example, the Pregnant Workers Fairness Act requires
employers to provide reasonable accommodations for employees with
pregnancy-related limitations, unless such accommodation would
create an undue hardship for the employer. The limitations can be
related to, affected by, or arising out of pregnancy, childbirth,
or other related medical conditions. Additionally, more than 30
states and cities have even more expansive laws that require
employers to provide accommodations for pregnant workers. The
Americans with Disabilities Act also requires employers to provide
pregnancy-related accommodations to a qualified individual with a
disability, again, so long as it would not cause undue hardship for
the employer. While pregnancy is not a disability, some
pregnancy-related conditions may be considered disabilities under
ADA.
Components of an Effective Parental Leave
Policy
Outline Eligibility
Employers must be clear as to who is eligible for parental leave.
Many employers limit parental leave to "maternity" leave
or leave for the primary caregiver of the child. However, employers
are increasingly offering parental leave to include
"paternity" leave or a gender-neutral policy that defines
eligibility as being unable to work after childbirth or within a
period of time after the child's birth or placement for
adoption. Eligibility may be further defined by time of tenure at
the company.
Set Parameters
Eligible employees should be clear as to the structure of their
leave. Any policy should specify the total amount of leave
available, particularly if it extends beyond the federally
protected FMLA leave, and whether it must be taken together or if
intermittent leave can be taken. The policy must clearly set forth
whether the leave is paid or unpaid. Additionally, if an employee
must apply through short-term leave or any other program, clearly
outline the steps that an employee needs to adhere to in order to
obtain this benefit.
Provide Step-by-Step Process for Requesting Parental
Leave
Employers need to provide clear detail as to how employees request
leave. Employees may be required to provide advance notice of a
certain period unless exigent circumstances occur. The policy
should outline what documentation is required for leave to be
approved. Such documentation may include a doctor's note
indicating time off following childbirth, a birth
certification/notice of birth, adoption papers, etc.
Clearly Define Structure of Payment
If the leave is paid, employers should be clear whether the
employee will receive a full rate of pay or a percentage of the
employee's pay. Paid leave can be made as full pay, a
percentage of salary or hourly rate, or a flat amount per week. If
payment is not made in the same way an employee's wages are
generally paid, the policy should clearly outline how the pay will
be disbursed to the employee.
Outline the Return-to-Work Process
Including a process for the employee returning to work can
streamline communication for the employee and management and set
expectations upon the employee's return. Any policy should
consider the employee's full integration into the role, as well
as other alternatives that an employee may pursue such as flexible
work arrangements (remote work, reduced hours, etc.).
Continue to Review and Update the Policy
Laws and regulations surrounding parental leave policies continue
to change. A yearly review of the policies can ensure that the
policy remains updated and compliant with federal and state
laws.
Clear policies can reduce any potential for confusion and highlight
an important benefit offered by the employer. A savvy employer can
develop an effective parental leave policy that takes a
multi-pronged approach to paid leave, flexible work schedules,
insurance coverage, and more to retain top talent. Wilson Elser can
assist in drafting and implementing a comprehensive parental leave
policy in compliance with state and local laws.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
