Trends in paternity leave in the U.S.

Excerpted from a Spilman Thomas & Battle PLLC blog by Chelsea Thompson

Parental leave was, once again, in the forefront of public discourse as the internet debated the appropriateness of Parag Agrawal, the CEO of Twitter, announcing his intention to take “a few weeks” off work following the birth of his second child. While much of the debate hinged on this man’s personal decision, it also sparked a larger conversation about parental leave in the U.S. — after all, Agrawal was only able to take paid time off because he worked for an employer who voluntarily offers it as a benefit to its employees.

Agrawal had to rely on Twitter’s paid parental leave policy because there is currently no universal paid parental leave in the U.S. Since 1993, employees have largely relied upon the Family Medical Leave Act (FMLA) to provide leave related to the birth or adoption of a child. The FMLA, however, only provides 12 weeks of unpaid, job protected leave after the birth or adoption of a child, but even that is only available with certain criteria.

There are exceptions, of course — certain federal military branches offer paid parental leave, and the newly effective Federal Employee Paid Leave Act provides up to 12 weeks of paid parental leave for federal employees—but generally, there is no federal requirement that an employer offer its employees paid parental leave. Recent efforts to enact federal legislation on paid parental leave fell apart as the Biden administration’s Build Back Better Act failed to get sufficient votes in the Senate.

Without a national paid parental leave policy, the U.S. sits as an outlier in the global economy. According to the World Policy Center, the U.S. is one of only eight countries in the United Nations to lack some sort of national paid parental leave. The other seven are Papua New Guinea, Suriname, Micronesia, the Marshall Islands, Nauru, Palau, and Tonga, the last five of which are small island nations.

States and cities in the U.S. have cobbled together a patchwork of protections. Over a dozen states have loosened the criteria for the state-equivalent of the FMLA so more workers have access to unpaid leave, and several have provided paid parental leave to state employees. Nine other states have passed legislation that requires private employers to offer paid leave to new parents within their borders. Finally, some states have mandated that pregnancy and/or birth is a temporary disability, essentially guaranteeing payment under disability insurance contracts.

The most generous policies, however, are often voluntarily offered by private employers—and these are the policies most likely to make headlines, as Agrawal’s announcement shows. Twitter is one of many private employers who offer paid parental leave, even though they are not required to do so by federal or state law. Other companies like Walmart, Microsoft, Facebook, and Deloitte have been publicly lauded for their voluntarily paid leave policies.

The gold star, however, goes to Netflix, who currently offers up to a year of paid leave to its employees after the birth or adoption of a child. And, it’s not just national companies offering this benefit. A 2020 study by the Society for Human Resources Management (SHRM) found that over 55 percent of employers offer paid maternity leave and 45 percent offer paid paternity leave.

The number of employers offering the benefit of paid parental leave is on the rise because more employers are recognizing the well-documented positive effects. Studies have long showed that paid parental leave helps reduce post-partum depression, decreases infant hospitalizations, leads to more regular doctor and wellness checkups, increases emotional development in children, normalizes childcare, and is associated with lower divorce rates. These benefits are in addition to the obvious financial benefits paid parental leave would provide to a family.

Given these well-documented benefits, employers are strongly urged to consider offering some sort of paid parental leave as an employee benefit. An internal audit, done with the aid of counsel, can help a company ensure it is complying with any state or local laws on paid parental leave, and advise the company on what type of paid parental leave policy may work best.

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