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Ask a Lawyer: As an Employer, What Are My Parental Leave Obligations?

Originally published on Minne Inno as part of their “Ask a Lawyer” series where NJL attorneys answer startup questions.

Question: One of my employees recently shared with me that she is expecting a baby. We’re a small, but growing company, with about 25 employees. I know we’re not covered by the Family and Medical Leave Act, but I want to make sure we handle everything in the right way. What are our obligations for parental leave, if any, and how do other companies handle that process?

Answer:  Congratulations on this milestone! As you plan the company’s first baby shower and think about parental leave, you have several umbrellas to consider: (1) federal leave law; (2) state or local leave law; and (3) disability law. You’re right that the federal Family and Medical Leave Act (FMLA) does not apply to your company at this time. The FMLA applies to private employers with at least 50 employees, and then, only to employees who work in locations with 50 employees within a 75-mile radius and who have sufficient tenure (12 months of service and 1,250 hours in the preceding 12 months). But the FMLA is just one consideration.

For example, other state and local leave laws may apply. The Minnesota Pregnancy and Parenting Leave law covers employers who have 21 to 49 employees. Employees may be entitled to take up to 12 weeks of unpaid parental leave related to the birth or adoption of a child. A birthing parent may also take time off for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions. To qualify, an employee must: (1) work at a location with at least 21 employees; (2) have been employed for 12 months preceding the request for leave; and (3) worked at least half-time with the employer.

Parental leave is generally unpaid, but your company might be required to provide paid leave to the extent the absence qualifies under another paid-leave law, such as the Minneapolis or St. Paul Sick and Safe Leave ordinances or, in some circumstances, if the company has its own paid sick leave program for an employee’s personal use. Furthermore, an employee who is not otherwise eligible for paid or unpaid leave may be entitled to time off for a pregnancy-related disability or medical condition under the Americans with Disabilities Act or equivalent state law. Depending on what leave laws apply, employers may be obligated to make health insurance available to employees on leave, require employees to be reinstated to an equivalent position upon return, and be prohibited from taking retaliatory action against employees who request or take leave.

Overlapping leave laws are complicated, and it is important to provide a consistent approach for all employees to avoid a potential legal claim. Employers typically work with legal counsel to draft a parental leave policy that meets minimum standards. Then, for business reasons, a company may consider providing more generous benefits. For example, small companies can stake out a competitive position to recruit employees by offering some form of paid parental leave, or a PTO benefit that may be used during a period of parental leave.

Courtney Blanchard

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