31st Annual Parsons Behle & Latimer Employment Law Seminar - Salt Lake City - May, 22, 2019

1. 31st Annual Employment Law Seminar
M A R R I O T T C I T Y C E N T E R H O T E L | S A LT L A K E C I T Y, U TA H
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M .
Considerations For Implementing
A Parental Leave Policy
Liz M. Mellem
801.536.6694 | amellem@parsonsbehle.com

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What is “parental leave”?
• The period of time when an individual (mother, father,
domestic partner, etc.) stops working because the individual
is about to have or has just had (or adopted) a baby.
◦ This can also apply to foster care placement and surrogacy
◦ Does not apply to “caregivers” – employees needing leave to care
for a family member with a serious health condition (This would be
considered “family leave” or even just “paid leave”)
• Maternity leave = can cover time before and after arrival of
child (women only)
• Paternity leave = same as Maternity but men only

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Pew Research Center Data (May 2017)

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Parental Leave in the News:
• Etsy: In 2016, announced 26 paid weeks of parental leave
◦ Detailed business justifications for their policy:
• Wal-Mart: In 2018, announced hourly workers would get 10
weeks of fully-paid maternity leave, fathers/partners could
take up to 6 weeks of parental leave
• Microsoft: 2018, expanded its parental leave policy to
contractors (12 weeks paid leave after birth of child or
adoption)

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Parental Leave in the News:

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Parental Leave in the News:

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Which laws cover the issue of parental leave?
• Family Medical Leave Act (FMLA) - Employers who are bound by FMLA must
protect an employee’s job for 12 weeks of leave
• Title VII of the Civil Rights Act - Cannot provide different leave policies (or
exclude an employee from leave, or apply leave policies differently) based on a
protected category (e.g., sex, race, ethnicity, etc.)
• Equal Pay Act - Men and Women must be paid the same for the same work
• Americans with Disabilities Act – pregnancy related medical issues
• State and Local Equivalents - Be sure to know your state’s laws! (E.g., some
states’ anti-discrimination laws apply if you have only ONE employee – a much
lower bar than Title VII)

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Is my company required to have a policy?
• The short answer:
◦ NO!
• The reality:
◦ It’s in your best interest to have a clearly defined, non-
discriminatory, policy
 It will allow for easier administration and application of the policy;
 It may attract new hires;
 It can help with employee morale and reduce turnover;
 It will help reduce confusion between your policy (whether you have one,
what it is, etc.) as compared to the federal and/or state requirements (e.g.,
FMLA, etc.)

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If we have a parental leave policy, must the leave
be paid?
• No, in Utah you are not required to pay your employees
when they take parental leave.
◦ But, as of 2018, California, New Jersey, Rhode Island, and New
York require paid parental leave. (Washington too, as of 1/1/2020)
• But, if you do provide paid parental leave, you can require
employees to exhaust their other paid leave prior to parental
leave.
◦ You can require your employees use vacation/sick/PTO benefits
before collecting parental leave pay.
◦ However, think about the work/life balance here. Consider whether
you should allow employees to keep a few of their accrued paid
leave days to be used later in the year.

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FMLA Basics
• Applies to employers with more than 50 employees within 75 miles
• Eligible employees are those you have worked a minimum of 1,250 hours during the
prior year
• Requires you provide 12 weeks of unpaid leave to eligible employees
◦ Leave can be taken intermittently (doesn’t have to be in one chunk)
◦ You can define the “year” in which the employee takes leave on a rolling basis (rather
than calendar year)
◦ Must keep employee on health insurance, but do not have to allow accrual of sick time or
other benefits (like seniority) while employee is on leave
◦ Can run FMLA leave concurrently with company’s parental leave policy – don’t have to
allow both consecutively.
• Can require (and must allow) employee to sub paid leave from accrued sick/vacation
time, short term disability, long term disability, or state disability payments

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EEOC Pregnancy Discrimination Guidance:
• “For purposes of determining Title VII’s requirements,
employers should carefully distinguish between leave
related to any physical limitations imposed by pregnancy or
childbirth . . . and leave for purposes of bonding with a child
and/or providing care for a child.”
• “Leave related to pregnancy, childbirth, or related medical
conditions can be limited to women affected by those
conditions.”
• “However, parental leave must be provided to similarly
situated men and women on the same terms.”

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Informative Cases:
• Johnson v. University of Iowa, 431 F.3d 325 (8th Cir. 2005)
◦ The Eighth Circuit held that the university’s parental leave policy (which allowed
biological mothers to use accumulated sick leave after baby was born) was not
discriminatory even though biological fathers could not do the same
◦ “If the leave given to biological mothers is granted due to the physical trauma
they sustain giving birth, then it is conferred for a valid reason wholly separate
from gender. If the leave is instead designed to provide time to care for ... a
newborn, then there is no legitimate reason for biological fathers to be denied
the same benefit.”
• Josh Levs’ EEOC Charge Against Time Warner (2015)
◦ Levs alleged TW’s paid parental leave policy discriminated against biological
fathers. Birth mothers and adoptive parents received 10 weeks of paid leave, but
bio fathers only received 2 weeks. TW settled in 2015 and changed their policy

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Poor Policy = Problem
• August 2017 – EEOC sued Estee Lauder for sex
discrimination based on parental leave policy that was
applied differently to men than women
◦ Women given paid leave to recover from childbirth + 6 weeks of
paid parental leave for bonding
◦ Men only given 2 weeks of paid leave for bonding
◦ EEOC sued based on violation of Title VII and Equal Pay Act

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Estee Lauder continued:
• Estee Lauder settled the case for $1.1 million and
announced new, very generous policy for employees who
work 30 hours/week
◦ Now give 6-8 weeks to moms for recovery from childbirth + 20
weeks paid leave for bonding (available to moms and dads) +
$10,000 toward adoption + back-to-work transition program
◦ And, EL offers $20,000 toward infertility treatments
◦ Moral of the story: EL learned a lesson the hard way and is going
above and beyond to fix it (both legally and from a public relations
standpoint)

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What are the drivers for offering parental leave?
• Employee Influence
◦ Employees have begun demanding paid leave policies as a benefit.
◦ Multiple factors are at play, but they include: growing proportion of millennials in
the workforce, media coverage of companies’ new and expanding policies (Estee
Lauder), and hearing about friends’ or family members’ paid leave benefits
• Competitive Pressure
◦ Offering or expanding a parental leave policy can help an employer compete for
quality employees
• Influence of the tech industry
◦ Netflix offers 52 weeks of parental leave; Spotify offers 26 weeks
◦ Example: healthcare company in a rural are competes for workers with the
distribution center of a large tech company. Because the tech company offers
parental leave, the healthcare company felt it had to follow suit.

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Best Practices and Considerations for Drafting a
Parental Leave Policy
• Employer can choose the eligibility requirements
◦ You can choose who is eligible (as long as it’s not a discriminatory choice) and you don’t
have to give the benefit on day #1 of employment
 Example: Estee Lauder requires at least 3 months’ work
 But you can require up to 12 months. You can require some time of employment before
accrual just like with other benefits
• You can treat women who have given birth better than men
◦ As long as the leave is related to pregnancy, childbirth or related medical conditions it can
still be limited to females affected by the conditions. If you do this, expressly state the
leave is for physical recovery from pregnancy-related medical conditions and no other
reason.
◦ The key here is the physical recovery from childbirth! You can provide leave for
pregnancy-related medical issues (pre- and post-birth), and separate leave for bonding
after the baby is born. It is not discriminatory for men to only receive the bonding time, but
they must receive the SAME AMOUNT of bonding time

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Best Practices and Considerations Continued:
• You can run your policy at the same time as any applicable FMLA
leave.
◦ You are not required to piggyback them.
• Consider limiting the benefit over a period of time (e.g., a rolling year)
◦ You may have a situation where multiple births or adoptions occur in less than
12 months’ time!
• Avoid primary v. secondary caregiver policies
◦ You can allow the “primary” caregiver more time off, but it’s sticky, an
administrative nightmare, and can lead to unintended consequences (e.g.,
everyone claims they are the primary caregiver in order to get maximum time off;
employee complains of discrimination because only women are considered
primary caregivers by employer, etc.)

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Best Practices and Considerations Continued:
• As always, make sure the policy is written and provided to employees
• If you choose to offer pay (full or partial), the amount should be the
same for male and female employees (e.g., 100%, 50%, etc.)
• Implement the policy as written and equally across employees
• Train HR staff to properly administer the leave and avoid making
stereotypical comments
◦ New fathers cannot be discouraged from taking leave to accommodate parental
responsibilities, even if you know the new mother has also taken leave
• And, document, document, document the process and discussions
with the employee!

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Example Policy:
• General Statement of Purpose:
◦ [EMPLOYER NAME] recognizes that employees may need to be absent from
work to care for a newborn child or new adopted or foster child (referred to as
parental leave in this policy), or due to a pregnancy-related condition (referred to
as pregnancy leave in this policy). [EMPLOYER NAME] provides pregnancy and
parental leaves of absence to all eligible employees in accordance with the
Family and Medical Leave Act (FMLA), Pregnancy Discrimination Act (PDA),
Americans with Disabilities Act (ADA) and any applicable state law.

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Example Policy Continued:
• Procedure for requesting leave:
◦ If you need to take parental leave for the birth of your child or to care for a new
adopted or foster child, you should provide advance notice to your supervisor or
the [DEPARTMENT NAME] Department. When possible, you should give at
least 30 days' notice of your request for leave. If 30 days' notice is not possible
because of medical necessity or for other reasons, you should give as much
advance notice to [EMPLOYER NAME] as possible. Written notice is preferred,
but not required. If you are suffering from a pregnancy-related disability and
require reasonable accommodation (which may include leave) for this purpose,
please speak with [DEPARTMENT NAME] to discuss a reasonable
accommodation. You may be required to submit medical certification of your
disability.

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Example Policy Continued:
• Options for eligibility of employees:
◦ [All employees are eligible for [NUMBER] [weeks/months] of paid parental leave.
OR
◦ [Employees on maternity leave are eligible for [NUMBER] [weeks/months] of
paid parental leave/Employees on paternity leave are eligible for [NUMBER]
[weeks/months] of paid parental leave]. OR
◦ Employees are eligible for [NUMBER] [weeks/months] of parental leave if they
[ELIGIBILITY REQUIREMENTS]. OR
◦ [Additionally,] [A/a]ll employees are eligible for unpaid pregnancy disability leave
in accordance with the PDA and ADA. Please inquire with [DEPARTMENT
NAME] for information about eligibility requirements under these laws. This
leave may run concurrently with other leave where permitted by state and
federal law.] OR

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Example Policy Continued:
• More options for eligibility of employees:
◦ [Certain employees are eligible for unpaid pregnancy and parental leave under
the FMLA. Specifically, you are eligible for FMLA leave if you:
 Have worked for [EMPLOYER NAME] for at least 12 months (which need not be
consecutive).
 Have worked 1,250 hours over the 12 months preceding the leave.
 Are employed at a worksite with 50 or more employees within 75 miles.
 Please contact [DEPARTMENT NAME] with any questions about your eligibility for
FMLA leave. You may be required to use any accrued and unused [vacation and
sick time/PTO] while on FMLA leave. For more information, see [EMPLOYER
NAME]'s FMLA Policy.]

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Example Policy Continued:
• Compensation During Leave:
◦ [Pregnancy and parental leave is unpaid. However, employees may use any or
all of their accrued but unused vacation or other paid time off during their
pregnancy or parental leave. OR
◦ During pregnancy and parental leave, employees will be paid [PERCENTAGE]%
of their normal rate of pay for [LENGTH OF TIME]. Employees also may use any
or all of their accrued but unused vacation or other paid time off during their
pregnancy and parental leave. OR
◦ During pregnancy and parental leave, employees will continue to be paid their
[EMPLOYER NAME] normal rate of pay for up to [LENGTH OF TIME].
Employees also may use any or all of their accrued but unused vacation or other
paid time off during their pregnancy and parental leave.] OR
◦ [Short-term disability insurance [is also/may also be] available for pregnancy
leave. Please see [DEPARTMENT NAME] for information about short-term
disability insurance, including eligibility requirements.]

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Example Policy Continued:
• Discrimination and Retaliation are Prohibited!
◦ [EMPLOYER NAME] prohibits and will not tolerate discrimination or retaliation
against any employee or applicant because of that person's pregnancy or
parental leave. Specifically, no one will be denied employment, reemployment,
promotion or any other benefit of employment or be subjected to any adverse
employment action based on that person's pregnancy or parental leave. In
addition, no one will be disciplined, intimidated or otherwise retaliated against
because that person exercised rights under this policy or applicable law.
◦ [EMPLOYER NAME] is committed to enforcing this policy against discrimination
and retaliation. However, the effectiveness of our efforts depends largely on
employees telling us about inappropriate workplace conduct. If employees feel
that they or someone else may have been subjected to conduct that violates this
policy, they should report it immediately. If employees do not report such
conduct, [EMPLOYER NAME] may not become aware of a possible violation of
this policy and may not be able to take appropriate corrective action.

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Example Policy Continued:
• Acknowledgement of Receipt and Review:
◦ Always make sure you have an acknowledgement that the
employee has received and reviewed the policy!
◦ Example policy acknowledgement is beefy, but thorough.

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Thank You
• Liz M. Mellem
801.536.6694
amellem@parsonsbehle.com