Paternity Leave: Is Your Husband Eligible?Kevin Klein
A recent discussion in an online fathers’ forum captured the range of typical stories from American men taking paternity leave. It was started by a father-to-be (let’s call him Dave) whose boss responded negatively to his decision to take two weeks off for the birth of his daughter, even though one week was unpaid paternity leave and the other was a week of personal time. Two weeks was a “highly unusual” request from a man, Dave’s boss declared. Dave felt the disapproval was threatening enough that he cut his leave down to eight days: five of personal time, two of paternity leave, and the remaining day was a holiday.
Understanding the FMLA
Given the structure of Dave’s company, he could have legally requested much more time. The 1993 Family and Medical Leave Act (FMLA) states that people who work for any public agency or for a company with 50 or more employees are entitled to take up to 12 weeks of unpaid leave within 12 months of the birth or adoption/foster placement of a child in their care. They can also take the leave if they are unable to work due to a “serious health condition” or if they want to take time off to care for an immediate family member with a similarly defined condition.
As with any piece of legislation, the FMLA contains many clarifications and qualifications: witness Section 101 Item 8, which defines the term “person” as having “the same meaning given such term in section 3(a) of the Fair Labor Standards Act of 1938″—just in case you weren’t sure. More illustratively, the FMLA specifies that employees in a company that must offer paternity leave only count towards the 50 required if they work within 75 miles of the company’s location and for 20 or more calendar weeks during the year. Also, the prospective leave-taker must have worked for the company for at least 12 months (not necessarily consecutive, but totaling at least 1,250 hours) and must give at least 30 days notice before the leave is to take place “if the need for the leave is foreseeable.” To read the FMLA in its entirety, visit the US Department of Labor website at www.dol.gov.
Despite these examples, the FMLA is a comparatively straightforward legal document. Thus the trouble that paternity-leave takers meet with isn’t generally caused by misinterpretation; rather, like Dave, these men encounter resistance from bosses and colleagues. Of the five guys who posted responses to Dave’s story, two reported similar expressions of disapproval from their employers. One dad-to-be, who works at the same place as his wife, explained that his supervisor was fine with him taking up to the full 12 weeks of unpaid leave, but that his wife’s paid maternity leave was only calculated at 40 percent of her salary. Furthermore, she was given papers to sign stating that she would receive no health, dental, or life insurance coverage while on leave.
Some amendments have been made to the FMLA regarding military families. The President signed into law the National Defense Authorization Act (NDAA) for Fiscal Year 2010. The amendments provide that an eligible employee may take FMLA leave for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on (or has been notified of an impending call to) “covered active duty” in the Armed Forces. (Read more about these new military leave provisions.)
State Labor Laws
One strength of FMLA is that it disallows companies from freezing benefits during qualified leave (the couple mentioned above didn’t sign those papers). Another is that the policy’s inclusion of paternity leave signifies progress in recognizing the importance of men as active fathers. However, since the FMLA’s enactment in 1993, two major criticisms of its availability and impact have been made.
First, many private-sector employees don’t work for companies that are required to offer FMLA leave. The US Department of Labor’s 2000 report Balancing the Needs of Families and Employers: Family and Medical Leave Surveys found that while 77 percent of all US employees were covered by FMLA, only 11 percent of private-sector establishments were required to conform to it. According to the AFL-CIO’s 2001 bargaining fact sheet “Expanding the Family Leave and Medical Act,” this translates into 41 million American workers who don’t qualify for FMLA.
The second issue with FMLA is that many families simply can’t afford to take unpaid leave. The Department of Labor’s survey for its 2000 FMLA report found that of the 3.5 million American workers who had needed but were unable to take FMLA leave, 78 percent of them cited the loss of pay as their primary reason for not doing so.
To improve the feasibility of family/medical leave, individual states have begun enacting their own legislation. In 2004, California became the first US state to offer paid family leave: up to six weeks at 55 percent pay, not to exceed $728 per week. Unlike the FMLA, the California law covers all workers, not just those in companies of 50 or more employees. Companies are required to abide by either the federal FMLA or the state’s policies, whichever is more generous to employees. The US Department of Labor website contains information on how the family and medical leave laws of the 11 states that currently have enacted their own legislation differ from the FMLA. Besides California, these states include Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin, and the District of Columbia as well.
Of course, there are also some employers who offer paid family leave regardless of either federal or state requirements. One man who responded to Dave’s paternity-leave post works in a state governor’s office and said that he received two weeks of paid family leave, followed by the option to work for 12 hours per week on full-time pay for another four weeks.
But given the rarity of this scenario, it’s not uncommon for Americans to complain about the lack of any paid family leave at the federal level, comparing the FMLA to the family and medical leave offered by European countries.
A closer look at the actual policies of these countries shows that the FMLA does not match up so unfavorably. In her report Bringing Up Baby: A Comparison of US and European Family Leave Policies, economist Anita U. Hattiangadi notes that Austria, Germany, Ireland, Italy, and the Netherlands do not have federally mandated paternity leave at all. And in those countries that do offer paid paternity leave, fathers of newborns are guaranteed far fewer days of available leave than the FMLA allows: Portugal and Luxembourg require companies to provide only two days, France and Belgium give three days, and the two most generous countries are Sweden with six to 12 days and Denmark with two weeks.
While it’s true that even those few paid days off are more than the FMLA offers, fathers in these countries don’t have the option to take off more time and still maintain their jobs. Only the UK offers a similar amount of time as the US—13 weeks—and as with the FMLA, the leave is unpaid.
Making Paternity Leave Work
As Dave discovered, taking even a small portion of FMLA leave for new fatherhood still hasn’t gained complete acceptance within American companies. The change in attitudes towards men’s re-prioritizing in life and work will happen slowly, but guys can take steps to make their leave as unobtrusive as possible. Sue Shellenberger, Work & Family columnist for the Wall Street Journal Online, offers these suggestions:
- Before you take leave, be sure to make a plan for how your work will be covered while you’re out. Get your bosses and co-workers to agree—and put the plan in writing. Set limits on when you can be contacted.
- Cross-train co-workers to handle your job. This avoids the most common mistake leave-takers make, which is not training a replacement. Though you might think that leaving colleagues in the dark about your job will ensure job security, it’s a short-sighted strategy that can prejudice your boss against you when you return.
- A call from a lawyer may be all that’s needed to halt unfair treatment. In Ohio, a secretary who took intermittent leave was downgraded and suspended for failing to work 8 to 5—but co-workers were all on a flexible schedule. Arguing discrimination, her attorney appealed to a human-resources manager at the company, and the secretary was quietly reinstated.
Law vs. Society: Validating Fatherhood
While the FMLA’s inclusion of paternity leave makes a strong statement about the importance of fathers’ presence in the home, many men have found that workplace culture hasn’t caught up with the policy shaping it.
Ironically, the situation mirrors the one faced by women throughout last century until today: equal pay for equal work is indeed the law, but some American wage statistics still show a slightly unfavorable discrepancy in female-to-male pay ratios when all other differences are accounted for.
Just as women have sought to expand the social perceptions of their contributions from the domestic to the professional sphere, men are seeking to carve out larger fatherhood roles from the traditionally male cultivation of an identity based primarily on career. Their struggle to validate paternity leave stands to benefit from the example of women’s rights activists, whose efforts have led to policies built on workplace gender equality—which is evident, by the way, in paternity leave being part of the FMLA.