What to Expect When They’re Expecting: Leave Policies for New Fathers

February 10, 2020

With the movement toward a more equitable distribution of family duties in two-parent households, the traditional discrepancies between lengths of maternity and paternity leave have become a hot-button topic. In the national news, cases alleging fathers suffered discrimination for taking paternity leave (or requesting the same amount of leave as female partners) have garnered a lot of attention. Class action lawsuits against J.P. Morgan Chase (which resulted in a $5 million settlement) and Jones Day have highlighted the gap between maternity and paternity leaves offered by private employers as well as the old mindset that prioritized female over paternal caregiving. Although the claims were premised on federal anti-discrimination laws, the cases spotlight the discrepancy in state law protections for paternity leave. What, if anything, is an employer required to offer a newly minted father under Wisconsin law?

Increased Prevalence of Paternity Leave

In the United States, there has been a marked increase in new fathers taking longer leaves after the birth of a child. The U.S. Department of Labor (DOL) issued a policy brief in 2015 that underscored the importance of fathers taking leave after the birth or adoption of a child, including increased bonding between the two and the improved health and development of the children. Also, the brief noted that when fathers take leave, employment and pay may increase for mothers.

Whatever the reason, new fathers are taking leave at notably increased rates. According to a 2011 study conducted by Boston College’s Center for Work & Family, 76% of fathers returned to work within one week after the birth of a child, and 96% were back on the job within two weeks. When the same organization conducted another study in 2014, those numbers had decreased to 66% and 77%, respectively, for those with unpaid leave.

What WFMLA Says

The Wisconsin Family and Medical Leave Act (WFMLA) provides benefits to certain employees, provided they work for an employer that employs more than 50 permanent employees. Under the WFMLA, an employer must allow an employee to take certain amounts of unpaid leave depending on his various medical and health conditions or those of his immediate family. The statute also prohibits retaliation against an employee for taking or requesting leave.

Specifically, you must permit an employee to take:

  • Up to six weeks of leave within a 12-month period for the birth of the employee’s natural child or for the placement of a child for adoption;
  • Up to two weeks of leave within a 12-month period to care for the employee’s child, spouse or domestic partner, or parent with a serious health condition;
  • Up to eight weeks of leave within a 12-month period for a combination of the above reasons; and
  • Up to two weeks of leave if the employee has a serious health condition that makes him unable to perform his job duties.

The protections apply equally to both men and women and would allow a new father to take up to six weeks of unpaid leave after the birth of his child.

Paid Time Off?

No Wisconsin laws require a private employer to provide benefits to an employee who takes leave for his own health conditions or to assist with a family member’s serious health conditions. As noted above, the WFMLA doesn’t entitle an employee to receive compensation for the leave time.

In late October 2019, however, Wisconsin state senators introduced legislation that would grant employees up to 12 weeks of paid time off (PTO) for maternity and paternity leave, among other medical conditions. The bill would require all employees to pay into a state insurance fund, which would cover 66% of wages for most workers and up to 95% of the wages for those in the lowest income bracket. It’s the third time in recent years that a paid leave bill has been introduced. The first two bills failed without bipartisan support.

Although voluntary paid leave isn’t required, some employers do provide it. According to the DOL’s Bureau of Labor Statistics, an estimated 18% of employees in the private sector had access to paid family leave as of 2018.

Bottom Line

If you do offer paid leave to employees, you’re required to provide the same amount to both men and women to avoid implicating the WFMLA. As early as 1975, the Wisconsin Supreme Court warned employers offering dis-ability benefits that they couldn’t treat pregnancy leave differently without implicating the discrimination laws.

Specifically, the benefits policy in the 1975 case provided “different maximum periods of benefits and different conditions of eligibility for benefits for temporary disability due to pregnancy and childbirth than [were] provided for other temporary disabilities.” Employers aren’t required to provide temporary disability benefits to employees, but if they do, the court noted “it must be under a plan [that] does not discriminate on any basis prohibited by the fair employment law.”

This article, slightly modified to note recent updates, was featured in the January issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "What to Expect When They’re Expecting: Leave Policies for New Fathers," contact Danielle B. Tierney at dtierney@axley.com or 608.283.6712.