Question:

I am a small business owner. The wife of one of my male employees is due to have a baby later this year and I’m wondering if I am required to provide him with any kind of paternity leave or time off when the baby is born?

Answer:

This is a fairly common question for employers, who are often familiar with the pregnancy leave requirements in California, but who don’t know what leave (if any) their male employees are entitled to when they become new fathers.

As you probably know, female employees are entitled to up to four months of unpaid, job-protected leave known as Pregnancy Disability Leave (or “PDL”) if they are disabled as a result of pregnancy, childbirth, or related medical conditions. California employers with five or more employees are required to provide PDL. Men are not entitled to PDL, but they may be entitled to time off to care for newborns.

The federal Family Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) both provide for up to twelve weeks of unpaid leave within the first year of a new baby’s life. Under the FMLA, eligible employees may take up to twelve weeks leave following the birth or adoption of a child, while the CFRA provides for up to twelve weeks off to care for a newborn child, newly adopted child, or a child newly placed in foster care (often referred to as “baby bonding”). Both the FMLA and the CFRA apply to employers who have 50 or more employees. Generally, employees who work for employers who have 50 or more employees and who have been employed for at least 12 months, and worked at least 1,250 hours during that time period, may be eligible for FMLA or CFRA leave.

You state in your question that you are a “small business owner” so I assume that you are a private business with less than 50 employees, and therefore the FMLA and CFRA provisions do not apply to your business. However, if the FMLA or CFRA apply to your business, you may have to provide up to twelve weeks unpaid leave to your male employee who requests leave to care for a newborn child.
If an employer is not covered by the FMLA or CFRA, it is not legally required to provide any time off for paternity leave or “baby bonding.” But, employers are free to provide paid or unpaid parental leave for employees who wish to spend time with a new baby. If an employer decides to provide this type of leave, make sure your employee handbook or other written policies define leave eligibility, entitlement, and notice.

If you offer parental leave, it should be for the same length of time as any other personal leave that you make available to your employees. For example, if employees are entitled to 3 weeks of unpaid personal leave for reasons other than to care for a new baby, you may want to provide 3 weeks of unpaid leave for an employee to care for the new baby. To avoid potential discrimination claims, this leave would be available to natural or adoptive parents. You would also want to be sure that employees do not get less time for parental leave than they would for other types of personal leave so that your policies could not be viewed as discriminatory against new parents.

Some employers who provide parental leave simply incorporate it into an existing personal leave policy as one of the allowable reasons for leave.  This makes it clear that the amount of available time off for parental leave is the same as for an employee wishing to take personal leave for other reasons, and that the rules and requirements the employer has for eligibility for personal leave will apply regardless of the reason for the leave.

A parental leave policy should also address how and when an employee is able to use the leave. For example, does the employee have to provide a certain amount of notice? Many employers who provide this type of benefit require advance approval of leave, and provide that leave will be granted in the employer’s discretion based on business needs.

To summarize, if your business is not covered by the FMLA or CFRA, you are not required to provide leave for an employee to care for a newborn. However, you may choose to provide parental leave, and the eligibility for leave and leave entitlement will be defined by your policies.
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