Paid maternity leave is a benefit to which many U.S. employees are not accustomed. Most companies have moved away from offering paid maternity leave, opting instead to follow the Family Medical Leave Act (FMLA) regulations, which protects employees in organizations with 50 or more workers up to 12 weeks of unpaid medical leave. (The United States is one of only eight countries out of 188 with known maternity policies that does not enforce paid maternity leave.) In 2012, only 9% of employers provided new moms with full maternity disability salary, down from 17% in 2005. Who can blame Human Resource Managers for playing it safe when discrimination claims and lawsuits have been statistically increasing?
Like all organizations, schools can offer maternity and paternity time based on their missions. However, if they have 50 or more employees, they must comply with FMLA. Meaning, they must offer new parents with at least one year on the job up to 12 weeks per year of unpaid, job-protected leave for any one of three reasons: the birth or adoption of a child; to care for their own serious health condition; or to care for a sick child, spouse, or parent who has a serious health condition. It’s also important to note here that some state laws mandate more generous family leave than FMLA. Check your state laws when re-evaluating your policies on medical leave.
Progressive organizations such as Yahoo and Google offer employees a competitive benefits package, including paid maternity leave. However competitive, these company’s policies are legally questionable. At Yahoo, all parents get eight weeks off; biological mothers receive an additional eight weeks off for a total of 16. At Google, biological mothers are given between 18 and 22 weeks of paid maternity leave; fathers, same-sex partners, and parents who adopt are given seven. Microsoft, Pinterest, and Twitter have similar policies offering biological mothers more time off than fathers and adopting families.
If organizations are allowed to set policies based on their mission (as long as they remain compliant with FMLA), then why are Silicon Valley’s largest companys' policies in question? Let’s take a look at a recent article published by Mondaq Business Briefing.They reported on a recent Equal Employment Opportunity Commission (EEOC) claim by a male employee alleging that his employer’s paid time off policy for new parents is discriminatory on the basis of gender. Under Title VII, employers are allowed to differentiate parental leaves for fathers and mothers as long as they are still in compliance with the law. In the case summarized by Mondaq, the employee’s company allotted 10 weeks paid time off to women who gave birth and to both men and women who adopted infants. However, the company’s policy only afforded two weeks of paid paternal leave to biological fathers.
According to the EEOC, if an employer offers temporary or short-term disability leave, Title VII requires that the employer treat pregnancy and related conditions the same as non-pregnancy conditions. The EEOC also asserts that "while employers are permitted by Title VII to provide women with leave specifically for the period that they are incapacitated because of pregnancy, childbirth, and related medical conditions, employers may not treat either sex more favorably with respect to other kinds of leave, such as leave for childcare purposes."
Are you asking yourself how can companies like Yahoo and Google have “discriminating” paid maternity leaves when the EEOC has clearly stated that policies must not discriminate based on gender? You’re not alone. Once the case mentioned above sees its day in court and has been litigated, we may see a change in competitive maternity policies coming out of Silicon Valley. Until then, it seems that, although Title VII says companies must not discriminate based on gender, organizations can still take liberties establishing their mission-appropriate policies.
In the meantime, when reviewing your school’s policies regarding maternity and medical leaves, ensure that your employee handbook clearly answers the following questions.
- Does FMLA apply at your school? (Do you have 50 or more employees?)
- Does your state’s family medical and/or maternity leave law parallel that of the federal FMLA?
- Does your state law go beyond federal law by providing additional benefits?
- Does your school voluntarily publish its own maternity leave policy—and what are its provisions?
- What is the process for an employee to apply for FMLA and/or maternity leave—and are employees aware of this process?
- Does your school manage all family medical, maternity, and other leaves consistently by using forms and other written correspondence to confirm the type and duration of leave and any special circumstances involved?
Additional ISM articles of interest:
ISM Monthly Update for Human Resources Vol. 9 No. 2 Is Paid Maternity Leave Illegal?
Private School News Vol. 12 No. 1 FMLA Requests
ISM Monthly Update for Human Resources Vol. 10 No. 6 Ask Michael
ISM Monthly Update fort Human Resources Vol. 7 No. 8 Ask Michael
Additional ISM articles of interest for Gold Consortium members:
I&P Vol. 33 No. 16 Family Medical Leave Act (FMLA): Updates and Reminders for Private-Independent Schools
I&P Vol. 37 No. 12 Key Advice on Shaping Your Employee Health Benefits Plans
I&P Vol. 35 No. 13 Paid Leave Banks: Compassionate or Risky?
