By Kevin Green

According to a recent study, the United States is the only industrialized nation in the world that does not require private sector employers to provide paid parental leave for employees. That same study concluded that the United States is one of only three countries in the world that does not mandate paid parental leave. The other two countries are Suriname and Papua New Guinea.

In the absence of generally applicable federal law mandating paid parental leave, a patchwork of paid leave laws is developing at the state and municipal levels. For instance, California, New Jersey, New York, and Rhode Island have enacted laws that permit employees to obtain compensation during periods of family or medical leave. The city of San Francisco also has passed an ordinance that will require certain employers to provide some compensation for employees who take leaves of absence to bond with a new child.

In recent months, however, various actions have occurred at the federal level that touch upon parental leave. The remainder of this article discusses two such developments—the proposed Family and Medical Insurance Leave Act and the Equal Employment Opportunity Commission’s (EEOC’s) Enforcement Guidance on Pregnancy Discrimination and Related Issues.

The Family and Medical Insurance Leave Act

Although the federal government has yet to enact a generally applicable paid parental leave law, there has been movement on this issue at the national level. President Obama famously issued Executive Order 13706 in September 2015, thereby requiring that certain businesses that contract with the federal government provide employees with up to 7 days of Paid sick leave, including paid family leave.

Earlier that year, in March 2015, federal legislators introduced the Family and Medical Insurance Leave Act (FMILA). The House Bill proposing this legislation—H.R. 1439—was referred to the House Ways and Means Committee but has never been brought up for a vote. Depending upon the outcome of November 2016 elections, however, the FMILA—or similar legislation—may obtain more vigorous traction than it has experienced to date.

If passed, the FMILA would provide workers with up to 12 weeks of partial pay while taking leave to address any number of several conditions, including birth or adoption of a child. The compensation provided under the FMILA would equal up to 66% of an employee’s monthly wages, and the FMILA would apply to all workers. Funding for this benefit would be derived from a new 0.2% payroll tax, but benefits would be paid by the federal government, not by employers directly.

EEOC guidance on pregnancy discrimination and related issues

On June 25, 2015, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance). The EEOC’s Guidance discusses a panoply of federal laws that touch on pregnancy, childbirth, and pregnancy-related conditions, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act, among others.

The general thrust of the EEOC’s Guidance is that pregnant employees are entitled to accommodation for pregnancy-related conditions under both the PDA and the ADA. According to the Guidance, employers must treat employees with pregnancy-related health conditions the same as for all employment-related purposes as other employees who, although not pregnant, are similar in their ability or inability to work.Although much of the EEOC’s Guidance focuses legal requirements and best practices for addressing the needs of pregnant employees in the workplace, the Guidance also discusses the interplay of these mandates and parental leave policies. Specifically, the Guidance indicates that employers subject to Title VII of the Civil Rights Act of 1964 (Title VII) must carefully evaluate their parental leave policies to ensure that they do not provide greater parental leave benefits to women than to men. Such differential treatment may provide the basis for a claim of sex discrimination.

Fortunately, the Guidance provides practical analysis for employers. The EEOC’s Guidance establishes that, under Title VII, it is permissible for an employer to provide leave for pregnancy, childbirth or related medical conditions only to women affected by those conditions. Put differently, because men do not deal with the physical effects of pregnancy and related conditions, under Title VII, it is permissible for employers to limit leave for these conditions to female employees.

If, however, employers offer additional time to new mothers beyond the period for recuperation from childbirth—i.e., to provide time to bond with or care for an infant—an equivalent amount of leave must be provided to new fathers for the same purpose.

For this reason, employers who have adopted parental leave policies must be certain to clearly distinguish between permissible leave that is related to the physical limitations imposed by pregnancy or childbirth and parental leave that is permitted for other purposes.

Businesses may continue to provide more time off to new mothers than new fathers, but only if the additional leave is permitted to enable women to recover from the physical conditions associated with pregnancy and childbirth.

Notably, the EEOC Guidance does not take any position on whether parental leave must be paid or unpaid. However, if an employer offers paid leave to new mothers for periods of leave that are not attributable to the physical toll of childbirth, paid leave must be made available to new fathers on similar terms and conditions.

Kevin Green is an attorney with Mountain West-regional law firm Fennemore Craig practicing in employment and labor relations and representing clients in litigation before state and federal courts, as well as administrative proceedings before the EEOC, NLRB, and other governmental agencies. He represents employers in labor and employment matters, including claims of discrimination, harassment and retaliation under Title VII, the Americans with Disabilities Act and the Age Discrimination in Employment Act, among others. Reach him at Kgreen@fclaw.com.