How to Create a Maternity and Paternity Leave Policy

If your company is not required to provide parental leave — but you want to offer it to your employees — here are the 10 areas to cover in your policy.

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A maternity/paternity leave policy is a best practice for businesses looking to attract and retain talent. A recent survey found 26% of women changed jobs for better family benefits. Another 40% of job seekers said they would give heavy consideration to jobs that provided paid parental leave.

The Family and Medical Leave Act of 1993 (FMLA) guarantees eligible employees up to 12 weeks of unpaid, job-protected leave for a birth or a placement of a child in foster or adoptive care. The FMLA applies to businesses with more than 50 employees and employees who have worked at a company for at least 12 months and 1,250 hours. Under the FMLA, employers do not have to pay wages during the leave period, but they must continue all group health coverage through the duration of the leave.

More than half of United States workers are eligible for unpaid FMLA leave based on the size of their employer and the hours they’ve worked, but 44% are still ineligible. Of those eligible for leave, only 43% are workers in single-parent households, and 63% are in dual-parent households. Nine states currently require some form of paid family and medical leave, funded either through employee or employer contributions. Federal employees became entitled to paid parental leave in 2020.

The FMLA applies to businesses with more than 50 employees and employees who have worked at a company for at least 12 months and 1,250 hours.

Drafting a maternity/paternity leave policy

If state or federal laws mandate your company to provide leave, the regulation itself should provide guidance for the minimum leave allowed in your company policy. A company-wide policy should exist for companies:

  • Who the law does not mandate to provide leave
  • That wish to provide longer leave or leave for employees who do not meet eligibility requirements

Your policy should include who is eligible for maternity/parental leave, how much leave will be offered, and what documentation employees need to provide to support their request. Here are the specifics to include.

Eligibility

If your company offers leave based on state or federal guidelines for eligibility, include those minimum requirements in your policy. If your company offers leave to employees not covered under the law, note which employees. For example, maybe you want to make all full or part-time employees eligible — if so, make sure to specify the minimum average amount of hours worked weekly.

Reason for leave criteria

You should specify how to outline the reason for leave requests, and the employee should meet one of the following criteria:

  • They are giving birth to a child
  • They are the spouse or committed partner to someone giving birth to a child
  • Their household is receiving the placement of a foster child 17 years old or younger
  • They are adopting a child 17 years old or younger*

*For most companies, adoption of the child of a spouse or committed partner does not warrant leave.

Duration of leave 

Include the maximum length of time offered to the employee for the leave. Outline that leave may commence before the birth or placement of the child. Expectant mothers may require time off for doctor visits; adoptive or foster parents may require time to meet with attorneys or file paperwork with the courts. Leave therefore, could begin before the event — but still should have a maximum duration.

Under the FMLA, parents can take leave no later than 1 year from the date of birth or placement of a child in the home: most companies adopt this standard, as well.

Projected start and end dates

Prepare to be flexible with leave start and end dates. For most parents, the anticipated date of birth of their child is an estimate rather than a firm number. For placement in adoptive or foster care, an agency may place a child with as little as a day’s notice. Ask employees to provide approximate dates, with the understanding they may change due to circumstances.

PTO policy

Your policy can designate whether earning sick, vacation, and personal time will be suspended during the leave period, or will continue to accrue.

Include what paid time off, if any available, the employee may or may have to exhaust during the leave. Under federal guidelines, employers have the option to require employees use all their accrued sick, vacation, and personal time during the leave period.

Federal law does not require employers to allow workers to continue to earn paid time off during their leave. Your policy can designate whether earning sick, vacation, and personal time will be suspended during the leave period, or will continue to accrue.

Required documents

For an employee’s personal medical condition (pregnancy), the standard FMLA form can be used to certify the need for leave. Businesses notified by workers of the need for leave can complete another form, and provide it to the employee. In either case, the employee should provide some form of documentation — either from a doctor or adoptive/foster care agency — to substantiate the need for the leave.

Consecutive or calendar leave

Under FMLA, employers have 2 options to determine leave duration: either by consecutive or calendar calculations. Under consecutive leaves, employees are eligible for leave for up to 1 year from the time of the event (birth/placement). These staff members are ineligible for additional leave until they have been back on the job for at least one year after the leave ended.

Under calendar leaves, employees are eligible for leave for up to 1 year after the time of the event (birth/placement) for every calendar year. Under this type of leave structure, the “leave” clock resets for all employees on January 1. This can mean a substantial difference in time off work, based on the date of the event. For example:

  • An employee gives birth on May 1, 2021: under the consecutive calculation of leave they are entitled to 12 weeks total leave through May 1, 2022. They are ineligible for further leave until May 1, 2023 or one year after they returned from the past leave, if they returned earlier than May 1, 2023.
  • An employee gives birth on May 1, 2021:  under the calendar calculation of leave they are eligible for up to 12 weeks of leave through December 31, 2021. They are then eligible for an additional 12 weeks of leave through May 1, 2022. These workers are eligible for additional leave on January 1, 2023.

While the calendar leave calculator is easier to manage — with everyone’s leave eligibility starting on January 1 — it can mean more time off than under consecutive leave. Whichever calculator you choose to utilize, it must be the same for all employees to avoid discrimination.

Paid or unpaid leave

Despite limited mandates, some employers are offering wages for time off the job, either partial or full salary, to attract and retain talent.  If you choose to pay employees for maternity/paternity leave, outline specifically the details of your pay structure. You may classify:

  • Who is eligible: such as full and/or part-time employees
  • The minimum required length of employee tenure
  • Whether or not the employee has exhausted all their accrued sick, vacation, and personal time, etc

If you intend to provide full wages or a percentage of wages throughout the entirety or any portion of the leave, make sure to outline how much you will pay, what the maximum amount can be, and the maximum duration of payment. Remember if you provide this benefit, you should offer it to all employees in your designated categories to assure no discrimination occurs.

Disability pay

In most states, pregnancy and childbirth count as qualifying reasons to collect short-term disability pay. Some companies that opt to provide paid maternity leave do so after short-term disability (STD) payments have been exhausted. Check with your provider to find if your staff members are eligible. If you don’t carry STD coverage for your employees, it’s a low-cost way to provide some maternity leave pay for workers.

Spouses

Under the FMLA, spouses who work for the same company are limited to 12 weeks total FMLA leave for maternity/paternity. Your policy may want to include that limitation for spouses, or you may wish to allow both parents full access to parental time off.

At Netflix, parents are offered up to 1 year of paid leave, whether they’re full or part-time staffers. That may be too generous for your business, but some form of maternity/paternity leave should be part of your best practices. Providing assistance to families through paid or unpaid leave may be a retention tool well worth the investment for your organization.

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