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Trump Will Offer Paternity Leave

In President Trump’s speech to the nation on Feb. 28 the reference to his maternity leave proposal as parental leave suggest new fathers will be included.

A campaign promise suggested by his wife Melania the plan would provide up to six weeks of paid maternity leave to new mothers, funded by unemployment compensation insurance.

Adopting a nationwide approach may actually turn out to be helpful for employers who are contending with a proliferating number of states and municipalities that have mandated this employee benefit, most recently including Washington, DC.

“Often when a large number of states pass laws in a certain area, federal law follows,” points out Sarah J. Platt, an attorney with the law firm of Ogletree Deakins. “As employers are forced to deal with a patchwork of differing state laws, a consistent federal law may ease the burden of compliance on employers.”

The paternity leave addition follows concerns raised that the original maternity leave proposal could violate federal civil rights law prohibitions against discrimination on the basis of gender.

Title VII of the 1964 Civil Rights Act prohibits discrimination based on sex, and employee benefit policies that provide greater benefits to mothers than fathers may run afoul of the law, Platt notes.

Employers currently may choose to provide medically necessary leave for mothers to recover from childbirth. However, the Equal Employment Opportunity Commission has opined that where extended leave is granted, such as for a mother to bond with a new child, distinctions based on gender could give rise to discrimination claims.

The proposal also may be expanded to include LGBT parents who did not give birth to the child, says Robin Shea, an attorney with the law firm of with Constangy Brooks Smith & Prophete.

“If they do that, I don’t see how they couldn’t expand it further to include all adoptive parents, so be on the lookout for that,” she warns.

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