As a small business owner, you may have found yourself wondering what do you do if one of your employees tells you he would like to take time off when his child is born (or is adopted). Here we will explain paternity policies from soup to nuts so that you can create a paternity leave policy that works for your small business and is legally sound. Please note that this article contains general information only, so you should consult your own legal professional before making any decisions.
We cover maternity leave in a separate article.
Worried about providing paternity leave? Justworks takes the headaches out of paternity leave and many other benefits, as well as providing compliance and payroll. Click here for a free consultation.
Do I Need a Paternity Leave Policy?
There are two main factors that affect whether or not you are required by law to provide paternity leave:
- The size of your company
- Your business’ location
Company Size
If you are a private employer of 50 or more full time employees, you, in general, will need to oblige by the Family and Medical Leave Act (FMLA), which covers paternity, adoption/fostering, and maternity. Among other things, this law requires businesses to provide up to 12 weeks of unpaid paternity leave.
Please note that, under the FMLA, “spouse” means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a common law marriage or same-sex marriage. Note that federal law now protects same-sex marriages.
Unfortunately, if a male is the adoptive or biological parent but is not in a common law marriage, civil union, or traditional marriage with the mother, then he is NOT entitled to FMLA.
If you are a private employer of fewer than 50 full time employees, under federal law, you have no obligation to provide paternity leave. However, having and adhering to a paternity leave policy can help you attract and retain top talent.
Business Location
If your business has fewer than 50 employees, you are not required by federal law to provide paternity leave, but state law may require you to do so.
14 states & the District of Columbia have paternity leave and/or related policies (i.e. adoption leave laws). These states are as follows:
State Paternity Leave Laws
| State | Summary of State Law |
|---|---|
| California | The California Family Rights Act mirrors FMLA for employers of 50+ employees. The state also has a separate temporary disability fund where eligible employees may collect the same benefits available for a temporary disability for up to six weeks in order to bond with a new child, which covers fathers. Learn more here. |
| Connecticut | Connecticut state law expands on FMLA for workplaces with 75+ employees. It requires these employers to give up to 16 weeks in any 24 month period for birth, adoption, or fostering a child. This law covers fathers. |
| District of Columbia (D.C.) | Employers with at least 20 employees must allow eligible male employees to take up to 16 weeks of family leave plus 16 weeks of medical leave in any 24-month period. Family leave can be taken for the birth, adoption, or foster placement of a child and for the permanent placement of a child for whom the employee permanently assumes and discharges parental responsibility. |
| Kansas | Kansas does not have a law that covers private employers for paternity policy. However, if an employer does offer leave to care for a newborn, the state antidiscrimination law would most likely be interpreted to require that the leave be offered to both male and female employees. |
| Kentucky | This is a unique state that carves out a special law for adoption. All employers must allow employees to take time off for the placement of an adoptive child. Employees are entitled to take reasonable personal leave for this purpose, not to exceed six weeks. |
| Maine | Employers with more than 15 employees must give eligible employees, including fathers, up to ten weeks off in a two-year period for the birth or adoption of a child. |
| Maryland | Employers that provide paid parental leave following the birth of a child must make the same amount of leave available to adoptive parents. This law applies only to employers with at least 15 employees. |
| Massachusetts | Employers with at least six employees must give eligible employees up to eight weeks off for the birth or adoption of a child. This includes fathers. |
| Minnesota | Employers with at least 21 employees must allow eligible employees to take up to twelve weeks off for childbirth and/or bonding with a new child. Bonding leave is available to biological and adoptive parents, but must be taken within 12 months of the child's birth or adoption. To be eligible for leave, the employee must have worked at least half-time for the employer for 12 months prior to the request for leave. |
| New Jersey | The New Jersey state law mirrors the FMLA. However, the eligibility is slightly different: the employee must have worked for at least one year, and at least 1,000 hours in the last 12 months, for the employer. The hours amount is lower than FMLA. |
| New York | All employers that offer parental leave for the birth of a biological child must make the same amount of leave available to employees who adopt a child who is preschool age or younger (or who is up to 18 years old, if the child has a disability). Learn more here. |
| Oregon | Employers with 25+ employees and if the employee in question (which includes fathers) must have worked at least 90 days to be eligible for the Oregon state law that requires employers to give time off for the birth or adoption of a child, or the placement of a foster child, up to 12 weeks in 12 months. |
| Rhode Island | Rhode Island also offers up to 13 weeks, over FMLA’s 12 weeks, for paternity. Employers need 50+ employees to be required for this law. |
| Tennessee | Tennessee state law provides longer leave than FMLA by stating that employers with at least 100 employees at the same job site where the employee works must give an eligible employee, including fathers, up to four months off for childbirth or adoption. |
| Vermont | Employers with at least ten employees must provide time off to eligible employees (including fathers) for childbirth or adoption of a child up to 16 years old. In 2014, Vermont enacted a law that gives employees the right to request a flexible working arrangement up to twice a year. Such an arrangement might involve a change in work hours (for example, to begin and end work later), working from home, changes to the number of hours or days an employee works, or sharing a job with another employee. |
*Please note that whichever law, state or federal, provides more leave/ more favor to the employee is the ruling law for creating your policy.
**Eligible employees in this table is referring to new fathers. There may be other laws specific to mothers, which are covered in our maternity policy article.
How to Create a Paternity Policy for Your Small Business
Paternity Leave Policy Options
Here are a range of options for customizing a paternity leave policy for your company if you are interested in creating one. We recommend a combination policy as it truly supports the small business owner and the employee in a fair and inexpensive way.
1. Unpaid Leave
Provide a set amount of unpaid leave. A general recommendation would be 2-4 weeks for paternity leave.
2. Remote/Work from Home Option
Provide an option for the employee to work from home. Communication is key here as the intention to work from home can change once the new arrival has actually arrived. Make sure to touch base after a predetermined amount of time to ensure this is a good arrangement.
3. Flexible Scheduling
Provide a flexible schedule such as part time or 3-4 longer days that add up to 40 hours for a predetermined amount of time. Similar to working from home, communication is key here as the situation can rapidly change.
4. Paid Leave
Paid paternity leave, though not as popular in the United States as in other countries, is also an option. Providing paid paternity leave can help you attract and retain employees. Some ideas for reasonably priced paid leave include:
- Have a graduated plan based on tenure (i.e. 40% for 1-3 years, 50% for 3-5 years, 60% for 5+ years). The cost to train an employee pays for itself at this rate!
- Offer a flat 1-4 weeks paid option.
Best Practice: Offer a Combination of Options
A combination paternity policy can be a great choice for your organization. You can sit back, look at your business, and create a paternity policy that supports the company culture you are trying to create. For example, a combination of unpaid leave and a return to work plan involving a flexible and/or remote work arrangement makes sense to keep your business going strong while supporting your valued employee. Check out our free Paternity Policy Templates to start creating your paternity policy today.
How to Administer Your Paternity Policy
We recommend that you make sure your attorney reviews your policy before you distribute it to employees. Once your attorney has assured that your policy is compliant, ensure all employees get a copy and understand it (for example, have a company-wide meeting or conference call). For help finding a business lawyer, read our guide.
If you’d like to be even more thorough, have every employee sign & date a copy of the policy and document this in their personnel files (electronic or paper is fine). If you have an employee handbook, the policy should also be added into there.
Another simple way to administer your paternity policy is through Justworks, as they have a free company handbook builder that can be updated at any time with your new policy changes. Click here for a free consultation.
Paternity Policy FAQs for Small Business Owners
What if my employee tells me he wants paternity leave but I don’t have a policy in place yet?
This is a common situation for many small businesses, and the following steps should help you to resolve it:
- Have you had an employee in the past who wanted paternity leave when you were a smaller business? What did you do? It is prudent to do the same thing for your current employee in order to keep treatment equal and fair.
- If you have not had this situation before and are operating in hindsight, our best practice advice is to work with the employee to find a win-win situation. What is he hoping for? Once you establish a plan with him, perhaps consider creating a paternity policy around this standard you are setting. Hopefully, he will then be your best advocate in rolling it out to the company!
I am confused on if I need to provide the same leave for an adoptive father as a natural father. Are they the same under law?
If you are in a state that has a state-specific FMLA or if you need to comply with the federal FMLA, then yes, adoptive fathers are covered.
If your business is in a state that does not have a state-specific FMLA law and you have fewer than 50 employees, technically, you do not need to provide paternity leave to adoptive or natural fathers. However, if you are going to provide leave for one, it is highly advisable to provide it for both in order not to have a discriminatory practice.
What if I heard through the grapevine that my employee is expecting his first child. What do I do?
Your reaction should depend on your relationship with the employee. While becoming a father is not a protected class under any federal law, you do not want your employee to feel singled out. We would recommend waiting for your employee to come to you in order to be prudent.
My new hire who started a month ago just told me he wants paternity leave in 6 months. What do I do?
This depends on your company size and if you have any paternity policy in place. If you have 50+ employees and have to oblige by FMLA, your employee is NOT eligible since he has not worked 12 months for you yet. You will then also need to check your state’s laws and we can refer you to our table.
If you fall into neither the federal or state’s categories, technically, you are entitled to provide nothing to him except to allow him the accrued sick and/or vacation time (if that is something your business provides).
I was JUST about to fire an employee for performance issues when he told me he’s expecting his first child. Are fathers as protected as pregnant women?
No, they are not. However, be prudent in that you should still have ample documentation as to why you are terminating his employment and ensure that it is for performance-based reasons. If there is a way to train or coach the employee to success, or place on probation with coaching & training, this could be a better path. Think of how your other employees might view your action and the situation.
What if the employee in question is in a same sex marriage or civil union?
Under the FMLA, “spouse” means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a common law marriage or same-sex marriage. It is prudent to include same-sex marriages, common law marriages, and domestic partnerships in your maternity and paternity policy since federal law protects these unions.
If your company has 15 or more employees then you are subject to Title VII of the Civil Rights Act of 1964, and sexual orientation and marital status are both areas where an employer cannot show unfair treatment. Thus, having a policy that does not include same-sex partners, domestic partners, and civil unions could potentially land you in legal trouble. It is prudent to be inclusive in all policies, even if your company is under 15 employees.
My top employee who is second in command and crucial to the business needs paternity leave. I heard I could say no if they are crucial to the business? What does that mean?
This is primarily an issue if you are an employer who needs to provide FMLA. If you have 50 or more employees and are subject to FMLA, there is a process you can go through to reject his claim for FMLA if he is crucial to your business. However, this is an area where the best practice would be to instead work with your second in command to create a plan that works for both the business and for him. Would they be willing to work part time, remotely, a flexible schedule? Would he help you to recruit for a temporary replacement? There are many options where a win-win arrangement could be created.
While technically you could deny a new dad’s FMLA request if he is “crucial to your business, think twice before doing so. What kind of example would that set for other employees? Would your second in command really want to continuing working for you?
Free Paternity Policy Templates
Here we are providing examples of both paid and unpaid paternity leave policies. Though we have not addressed much on paid policies, a paid policy is a great option for a small business that values its employees like a family. Think of if your son or brother worked for your small business- what would you want him to have as his options? When you do the math of recruiting for a new employee, training someone with years of knowledge, and company culture, a paid paternity policy can actually make financial sense for your small business.
Paid Leave Paternity Policy Template
Download this template as a PDF or here as a Word Document:
ABC Company provides paternity leave for adoptive and natural fathers/ partners as a benefit of employment here. To be eligible for these benefits:
- You must have worked full time for ABC Company for a minimum of 12 continuous months.
- You are in good employment standing with ABC Company (i.e. not on probation).
- We ask that you request leave a minimum 30 days in advance if possible. If this is not possible, please place your request ASAP once you become aware of it.
The benefits are as follows:
- 40% of your salary for the first 2 weeks of leave. (Another great option would be to include adding on extra benefits for tenure such as 40% for 12 months-36 months; 60% for 36 months-60 months; 80% for 60 months+)
- You may take your PTO & sick leave time that you have accrued/ kept, which are paid 100% of your salary amount.
- Total leave time should not exceed 8 weeks.
- We will continue to cover your health insurance premiums during your leave time given that you do return to work for ABC Company as previously agreed upon.
Prior to leave, the employee and ABC Company will create a return to work plan that also includes the leave time. The employee will also communicate with ABC Company if the leave plan or return to work plan needs to change while on leave.
Unpaid Leave Paternity Policy Template
Download this template as a PDF or here as a Word Document:
ABC Company provides paternity leave for adoptive and natural fathers / partners as a benefit of employment here. To be eligible for these benefits:
- You must have worked full time for ABC Company for a minimum of 12 continuous months.
- You are in good employment standing with ABC Company (i.e. not on probation).
- We ask that you request leave a minimum 30 days in advance if possible. If this is not possible, please place your request ASAP once you become aware of it.
The benefits are as follows:
- Up to 2 weeks of unpaid leave. (12 weeks is the same as FMLA.)
- You may take your PTO & sick leave time that you have accrued/ kept, which are paid 100% of your salary amount.
- Total leave time should not exceed 8 weeks.
- We will continue to cover your health insurance premiums during your leave time given that you do return to work for ABC Company. (This is an added benefit that has true value during unpaid leave and a great compromising point.)
Prior to leave, the employee and ABC Company will create a return to work plan that also includes the leave time. The employee will also communicate with ABC Company if the leave plan or return to work plan needs to change while on leave.
The Bottom Line
To sum up paternity policies, just remember that your company’s location and size are the two most important factors on determining what you need to do as an employer. The big number is if you have 50+ employees, then you need to oblige by FMLA. Remember to double check our state table to see if your state has additional paternity leave requirements.
Don’t forget to check out Justworks to take the hassle out of providing paternity leave and other benefits for your employees. Click here for a free consultation.
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