Drafting a Parental Leave Policy that Won't Get You Sued

Last year the Equal Employment Opportunity Commission (EEOC) sued skin care/fragrance behemoth Estée Lauder, claiming that its parental leave policies discriminated against men. According to the EEOC at the time, Estée Lauder provided eligible new mothers six weeks of paid parental leave for child bonding in addition to leave for recovery for childbirth, but only offered new fathers two weeks of paid bonding leave. The company also apparently provided flexible return-to-work benefits to moms that were not offered to dads.

Estée Lauder settled the infamous EEOC lawsuit for a $1.1 million payment to a class of dads and agreed to a consent decree that requires the company to avoid treating dads in a discriminatory manner. The company announced earlier this year that it would significantly sweeten its parental leave benefits for both women and men who regularly work 30 hours per week. According to a Business Insider report, the company now offers:

• Six to eight weeks to moms for recovery from childbirth.
  

• An additional 20 weeks of paid leave for bonding (available to moms and dads).
  

• $10,000 toward adoption expenses.
  

• A back-to-work transition program (regardless of gender or sexual orientation).
  

The company reportedly will also continue to offer $20,000 toward fertility treatments and in-home child care and elder care at reduced rates.

Insights for Employers

Are you thinking of creating your own parental leave policy? Or sweetening benefits in a leave policy you currently offer your employees? Here are a few nuggets you might consider to ensure your parental leave policies are up to snuff:

You choose eligibility requirements.

Employers have the right to set eligibility for parental leave benefits; you are not obligated to provide these benefits on day one of employment. Estée Lauder, for example, requires at least three months' service time, and other employers often require up to 12 months of service. Clearly, you can require some period of service before accrual, as you likely do with other employment benefits.

Moms vs. dads.

You can treat women who give birth better than men. Really, you can, and you should. After a woman has carried a child in the womb for nine months, endured the painful throes of childbirth, and now needs time to recover, doesn't it make sense that she deserves more time off after childbirth than, say, the guy holding her hand during the delivery?

Based on its June 2015 pregnancy discrimination guidance, the EEOC agrees, as noted in example 14 in the guidance:

Example 14

Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment

An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.

But let's not get too crazy about moms vs. dads.

Although the EEOC makes clear that you can treat mom better to allow her to recover from childbirth, employers cannot treat the sexes differently when it comes to bonding leave. Just ask Estée Lauder. In its pregnancy discrimination guidance, the EEOC makes clear:

"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."

If you provide paid parental leave to female employees for bonding with a newborn, as opposed to leave provided as a result of pregnancy-related conditions (e.g., pregnancy, childbirth or related medical conditions), you must provide the same leave to men or risk a gender discrimination claim.

This is the takeaway of the Estée Lauder case: When it comes to bonding leave, you cannot treat men differently from women. If you currently take this approach, change it now.

Parents getting busy don't get extra.

Might you want to consider a provision that limits benefits in the event of multiple births or adoptions in the same 12-month period? Crazier things have happened, and you have every legal right to limit the benefit over a period of time.

Exhausting other paid leave prior to parental leave is legal.

Employers can require employees to use vacation/sick/PTO benefits before collecting parental leave pay. The same could be said for maternity leave benefits, as long as you maintain the same requirement for employees absent for other types of medical conditions. That said, consider employee morale here and think about allowing employees to hold back a few of their accrued paid leave days so they can use them later in the year (again, all in the name of work/life balance).

[SHRM members-only how-to guide: How to Develop and Administer Paid Leave Programs]

Run Family and Medical Leave Act (FMLA) leave concurrently with parental leave.

Just do it. You have a legal right to do so. If you don't do this, you might start wondering why your employees are away from work more than they're at work.

Primary vs. secondary caregiver provisions are not for the faint of heart.

Some parental leave policies provide leave for the "primary" vs. "secondary" caregiver in the family. Technically, these provisions are fine but they surely can be a challenge to administer. Say you have an employee sign a document acknowledging that they are the primary caregiver so that they can get more leave. Whoa—sign me up, along with every other individual you employ. 

Draft a primary vs. secondary caregiver provision at your own risk (and only after you've consulted an employment attorney).

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where a longer version of this article originally appeared. © 2018 Jeff Nowak. All rights reserved. Republished with permission.

Related SHRM Articles:

How to Calculate the Paid-Leave Tax Credit, SHRM Online Benefits, February 2018

Companies Add New Twists to Parental Leave, SHRM Online Benefits, November 2017

Is Paid Parental Leave Right for Your Company?, HR Magazine, March 2017