Second Thoughts on Secondary Caregiver Leave

As many states, including New York, New Jersey and California, among others, continue to expand requirements for paid parental leave, a related question has emerged. What benefits and job protections are employers required to provide to so-called secondary caregivers, or partners who intend to focus more time on work and less time on childcare than their counterparts? Is it permissible to designate classes of beneficiaries, and if so, along what lines? Are there different requirements with respect to leave for birthmothers versus other types of parents? Many employers are now grappling with these questions, and different models are being tested in courts throughout the country.

Minimum Federal Requirements

Under the federal Family Medical Leave Act (FMLA), which governs employers with 50 or more employees, eligible employees are entitled to up to 12 weeks of unpaid, job-protected leave within one year of the birth of a child, or the placement of a child for adoption or foster care, in order to bond with the child. Although employers are not required by federal law to pay employees during this time, they are required to continue to provide health insurance benefits on the same terms as when the employee is not on leave. These FMLA requirements apply equally to mothers and fathers as well as to primary and secondary caregivers. If a birthmother requires medical leave as a result of conditions related to pregnancy or childbirth, any FMLA-related leave must be taken from the same 12-week-per-year allotment. However, federal and state disability protections may come into play to lengthen the leave period under such circumstances.

Minimum State Requirements

New York, New Jersey, California and Rhode Island all currently provide eligible workers with some amount of paid leave to bond with a newborn or newly placed foster or adopted child. In New York, for example, eligible employees working for employers of any size are currently entitled to 10 weeks of paid leave capped at a percentage of the state’s average weekly wage: 55 percent, or $746.41, in 2019, and 60 percent, or $840.70, beginning January 1, 2020. In New York, these paid family leave benefits are funded by an employee payroll tax, and several other states have implemented similar systems. Washington, Massachusetts, Connecticut, Oregon and Washington, D.C. have also enacted paid parental leave programs that will begin paying benefits between 2020 and 2023. Like the FMLA, these laws provide the same benefits whether the employee is the child’s mother or father, or the primary or secondary caregiver in the family. Thus, employers that meet only the minimum state or federal requirements for family leave cannot distinguish on these bases and must offer the same minimum benefits to all employees.

Secondary Caregiver Leave Policies

Because employers following minimum federal or state guidelines are obligated to provide the same benefits for bonding with a child to all parents regardless of gender or caregiver status, it is employers providing additional benefits that may choose to distinguish among these categories. However, employers must be careful in drafting such policies, as they have recently come under scrutiny for potentially discriminating against fathers. While categorizing such policies in terms of “primary or secondary caregiver leave,” rather than maternity or paternity leave, is a start to ensure that employers avoid implications of gender discrimination, the policies’ implementation must also be gender neutral in order to avoid potential liability.

For example, in July 2018, the U.S. Equal Employment Opportunity Commission (EEOC) settled a class action lawsuit with Estee Lauder for $1.1 million, in which the EEOC alleged that the company’s parental leave policy discriminated against men. The policy in question provided for “primary and secondary caregiver leave,” in which primary caregivers received six weeks of paid leave to bond with a child and were eligible for four weeks of flexible scheduling upon returning to work, and secondary caregivers were entitled to two weeks of bonding leave and were ineligible for flexible scheduling. Despite the gender neutral titles provided to the policies, the EEOC alleged that in practice, “primary caregiver leave” was available only for new mothers and “secondary caregiver leave” for new fathers. The EEOC charged that the policy’s implementation therefore discriminated against men under Title VII of the Civil Rights Act of 1964.

The EEOC settled a similar case with JPMorgan Chase (JPMorgan) in May of this year for $5 million on behalf of a class of fathers. In that matter, the EEOC also alleged that the company’s primary and secondary caregiver policies unfairly discriminated against men. Unlike the Estee Lauder matter, under JPMorgan’s policy, fathers could potentially be eligible for primary caregiver leave, but the company allegedly presumed that they were not. When the plaintiff, a new father, applied for the 16 weeks of paid leave that the company offered to primary caregivers, he was told by human resources that birthmothers are considered the primary caregivers by the company, and unless he could prove that his wife had returned to work or was medically incapable of caring for the baby, he was entitled only to two weeks of secondary caregiver leave. Because the plaintiff’s wife was a teacher on summer vacation, he could not meet these requirements, and ended up taking several weeks of unpaid leave instead. After the lawsuit was filed, JPMorgan clarified its policy to state that both mothers and fathers were eligible for the 16-week primary caregiver leave, and updated its procedures so that employees must only sign a notice selecting primary or secondary caregiver status.

Additional Leave for Birthmothers

In the wake of these lawsuits, it is often assumed that while leave to bond with a child should be gender neutral, it is appropriate (and sometimes necessary) to provide additional leave for birthmothers to recover from medical conditions related to pregnancy or childbirth. While it is true that various federal and state laws may require employers to provide such leave, a lawsuit pending in federal court in Washington, D.C. challenges the implementation of such policies as potentially discriminatory as well.

Savignac v. Jones Day, Civ. A. No. 19-02443, was brought by a married couple who both worked as attorneys for the law firm Jones Day. The firm’s parental leave policy provides 10 weeks of paid primary caregiver leave, four weeks of paid secondary caregiver leave, eight weeks of paid disability leave to birthmothers, 18 weeks of paid primary caregiver leave for adoptive parents and four weeks of paid secondary caregiver leave for adoptive parents. While the plaintiffs do not allege that the implementation of the firm’s primary and secondary caregiver leave is applied in a discriminatory manner, they allege that the policy discriminates against biological fathers because they are the only class of employees who are ineligible for 18 weeks of paid leave. As part of this argument, the plaintiffs point out that the paid disability leave for birthmothers is provided regardless of whether they actually have a medically certified pregnancy or birth-related disability. Jones Day has argued that the policy is not discriminatory simply because the firm does not require birthmothers to provide medical certification to be eligible for such leave, and has moved to dismiss the lawsuit along these and other bases. The court’s ruling in this matter will provide additional guidance for employers as to potential pitfalls in implementing similar leave policies.

Conclusion

Although employers are safest with a single, gender neutral parental leave policy that meets or exceeds federal and state minimum requirements, several other considerations may lead employers to designate various classes of beneficiaries, like those discussed above. Such policies must be gender neutral, not only by name, but in the way they are implemented. As for the interaction between leave to bond with a new child and to recover from medical conditions related to pregnancy or childbirth, employers cannot ignore such medical leave in favor of bonding leave, insofar as the federal Pregnancy Discrimination Act and many state counterparts require that leave for pregnancy-related medical conditions be treated the same as any other medical condition. The Savignac complaint suggests only that a company may run into trouble where it is viewed as providing such leave in a way that favors birthmothers over other employees.

As societal norms on these issues continue to shift, so too should employers’ parental leave policies. If your company has not recently reviewed its policy, it may be time to implement these important changes, both to retain employee talent and steer clear of charges of discrimination.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Jill Kahn Marshall who counsels both companies and individuals on employment matters. Ms. Marshall is admitted to practice law in New York and Massachusetts. Attorney Advertising.