Developing a Paternity Leave Policy for Employees

Your company may or may not be required to provide parental leave — but you might consider offering it anyway. Developing a desirable maternity/paternity leave policy is among today's best practices for businesses seeking to attract and retain talent. According to an employee benefits study compiled by Fractl,¹ some 26% of women polled on the topic report having changed jobs for better family benefits. And about 38% of all employees surveyed said they would give heavy consideration to jobs providing paid parental leave. As fatherhood at large has received more attention in recent years, a growing number of companies are instituting paternal leave policies. Having an official paternity leave policy in line with their maternity leave policy demonstrates that a business recognizes the roles and responsibilities of both parents. It’s an important benefit for new fathers. And it's one your company may have to offer if it seeks to retain top talent. Here's what to consider.

Unpaid leave guaranteed by the FMLA

The Family and Medical Leave Act of 1993 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 unpaid time off benefit applies to businesses with more than 50 employees and employees who have worked at a company for at least a year comprising 1,250 hours minimum. Under the FMLA, employers do not have to pay wages during the leave period. But they must continue all group health coverage throughout the duration of the leave.

Paternity leave guaranteed by states

In addition to the federal FMLA, states are passing their own parental leave laws. As of June 2022, 12 states had enacted and/or implemented laws guaranteeing paid paternity leave for eligible workers.

Creating a solid paternity leave policy

If your business is obligated by federal or state laws, you'll need a parental leave policy that complies with all applicable regulations. Many businesses not under legal obligation to provide this increasingly common benefit consider it a company best practice. Moreover, offering paternity leave shouldn’t be done haphazardly. Businesses should have an official policy that details what male employees receive in the event of a child's birth or adoption. Consider a company-wide paid family leave policy that includes paternity leave for organizations that:

• Aren’t required to provide leave but see it as a valuable benefit.
• Want to provide longer leave than is minimally required.
• Seek to extend parental leave to employees who don’t meet eligibility standards.
• Desire to offer paid leave when only unpaid leave is required.

Essentially, your policy should include:

• Who is eligible for paternity leave.
• How much leave will be offered.
• What documentation employees must provide to support their request.

Eligibility for fathers

If your company offers leave based on state or federal guidelines for eligibility, include those minimum requirements in your paternity leave policy. If your company offers leave to employees not covered under the law, note which employees will receive the benefit. For example, maybe you want to make all full- or part-time employees eligible. If so, clarify by specifying the minimum average number of hours worked weekly.

Paternity leave criteria

Specify how to outline the reason for leave requests. Perhaps you'd like an official leave of absence letter. The employee should also meet one of the following criteria:

• 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 or younger.
• They are adopting a child 17 years old or younger*.

*For most companies, adoption of a child of a spouse or committed partner doesn’t warrant leave.

Duration of paternal leave

Include the maximum length of time offered to the employee for the leave. The FMLA stipulates 12 weeks, but you can choose any number of weeks of paid leave when drafting a paternity leave policy. Many companies offer 4 weeks or 8 weeks because these are convenient durations. Additionally, outline that leave may commence before the birth or placement of the child. Fathers might have to take their partners to appointments. Adoptive or foster parents may require time to meet with attorneys or file paperwork with the courts.

Projected start and end dates

Prepare to be flexible with leave start and end dates. For most new parents, the anticipated date of birth of their child is an estimate rather than firm. Regarding adoption or foster care placement, a child may arrive with as little as a day’s notice. Ask employees to provide approximate dates, with the understanding those might change due to circumstances. Also stipulate whether the leave must be consecutive or can be nonconsecutive, and how long fathers have to use their allotted paid paternity leave. Under the FMLA, parents can take leave no later than 1 year from the date of birth or placement of a child. Many companies adopt this standard, as well.

PTO policy

Include what paid time off, if any is available, the employee may or may not have to exhaust during the leave. Under federal guidelines, employers have the option to require that 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 earning 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.

Official forms

Employees should provide some form of documentation from a doctor or adoptive/foster care agency to substantiate the need for taking family leave. Forms that address paternity and maternity leave in alignment with the Family and Medical Leave Act can be found online via the U.S. Department of Labor's Wage and Hour Division. Ideally, they'll align with your company's paid family and medical leave needs as well, making it easy for your HR team. Employers may also want to request documentation of a birth (from a medical provider) or of an adoption (from the adoption agency). How you handle this request should depend on your state’s laws and employees’ situations.

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 1 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) 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. If your business has a maternity leave policy, the policy should already stipulate whether leave is consecutive or calendar. Follow the same for your paternity leave policy.

Paid or unpaid leave

Despite limited mandates, more employers are offering full or partial compensation for time off the job to attract and retain talent. If you choose to pay employees for paternity leave, specify the details of your pay structure. You may classify:

• Who is eligible (e.g. full- and/or part-time employees).
• The minimum required length of employee tenure.
• Whether or not the employee must have exhausted other types of leave, such as accrued sick, vacation, and personal time.

If you intend to provide full or partial wages throughout the entirety or any portion of the leave, outline:

• How much you will pay.
• What the maximum amount can be.
• The maximum duration of payment.

If you do provide this benefit, offer it to all employees in your designated categories to ensure that no discrimination occurs.

Spouses' maternity and paternity leave

Under the FMLA, spouses who work for the same company are limited to a combined 12-weeks' total unpaid FMLA leave within the 12-month period for maternity/paternity. Your policy may want to include that limitation for spouses, or you may wish to allow both parents individual access to parental time off. Either way, providing some form of paternity leave is a wise and respectful practice. Supporting an employee's ability to spend time with their new family member by way of paid or unpaid leave benefits families, the workplace, and often the company at large. 1 Fractl Employee Benefits Study: The Cost and Value of Employee Perks