What Are the Laws Around Paternity Leave and Family Leave in the U.S.?

America doesn’t make it easy for new dads to take paternity leave. While 92 countries across the world offer paternity leave, for men in the United States, paternity leave (sometimes known as maternity leave for men) is not a full-on reality. Of what does exist, it’s often not long enough, not paid, and not adequate or available to enough workers. Paternity leave pay is a huge reason why men don’t take the benefit.

And while the federal government is considering putting 4 weeks of federal paid family and medical leave in Biden’s Build Back Better plan — a human infrastructure bill that would provide the benefit for the first time on a federal level by 2024 — it will be a long time before paternity leave in the US or paid family and medical leave in the US is offered on a federal level.

Simply put, while the rest of the world provides competitive paid leave for American workers, paternity leave in the U.S. is a different story. The United States stands alone in the fact that it does not offer any federal paid leave plan at all, leaving men, moms, and all parents in the dark when it comes to taking necessary time off for the health of themselves, and their new babies.

Despite popular support for paternity leave in the U.S., only a handful of states and cities have passed family leave and paternity leave laws. A 2018 report from the Organization for Economic Cooperation and Development (OECD) found the U.S. dead last among 41 countries for parental leave laws, with all other countries guaranteeing between two and 21 months of paid leave.

The United States does offer FMLA paternity leave, but that’s an unpaid benefit, making the issue of paternity leave pay one that makes access to paternity leave for men an issue of bifurcated access, where poor dads can’t access paid leave but rich dads can.

A 2019 UNICEF report of 41 wealthy countries found that 26 countries guaranteed paid leave for fathers, not including the U.S. The lack of paid time off for new parents hurts children, families, and society as a whole.

READ MORE: The Fatherly Guide to Parental and Paternity Leave

“Overall, the states and federal have not done nearly enough to provide the supports that working parents need — including working dads,” said Sarah Fleisch Fink, Director of Workplace Policy Nationally at the National Partnership for Women & Families.

But the U.S. does have several laws in place for paid parental and family leave.

ALSO: As Men Do More Unpaid Work, Policies Lag Behind

State and Federal Paternity Leave Laws

Five states currently mandate paid parental leave. New York State, California, New Jersey, Rhode Island, Washington state, and Washington, D.C. now have laws in place requiring employers to provide paid leave to employees.

The only federal protection for American dads hoping to take paternity leave comes courtesy of the 1993 Family and Medical Leave Act (FMLA), which gives parents the right to return their job back after taking time off but stops short of guaranteeing them pay. Under FMLA, new parents can take up to 12 weeks of unpaid leave without the threat of job loss during the first year following the birth, adoption, or placement of a foster child. And that’s most, not all parents. Employees qualify for parental leave under the FMLA when they’ve worked at least 1,250 hours in the 12 months preceding the leave, at a company that employs more than 50 people. (Government agencies and public and private school employees qualify, regardless of the number of employees.) With part-time workers and small business employees left in the lurch, many American workers aren’t covered under the FMLA. By some estimates, this kind of unpaid leave only applies to about 60% of American workers. As of October 2020, some federal employees qualify for paid family leave under The Federal Employee Paid Leave Act. But for private-sector workers, time off under FMLA may not be financially feasible. According to the 2020 National Compensation Survey, which is distributed by the Bureau of Labor Statistics, just 20% of all workers have access to paid family leave, and 11% don’t even have access to unpaid family leave. Among the workers earning the bottom 25% of wages, only 9% have access to paid leave.

RELATED: The Surprising Ways Taking Paternity Leave Helps Your Spouse

Paternity Leave Laws By State

In 2002, California passed the first paid parental leave law in America. When the law went into place in 2004, new parents received 55 percent of their wages for up to six weeks. In 2018, the percentage was increased to 60 or 70 percent of their income, for up to eight weeks within a year-long period. Starting in 2021, this kind of leave will also apply to parents whose family members are deployed overseas. However, this kind of paid leave does not come with job protection.

New Jersey passed a paid family leave law in 2008 and started paying benefits in 2009. Under the garden state’s program, new parents can receive as much as 85% of their wages for up to 12 weeks of family leave

Rhode Island passed a paid family leave or “temporary caregiver insurance” law in 2013, which took effect in January 2014, and provides job protection. Rhode Island’s law provides four weeks of wage replacement at up to about 60 percent of the employee’s usual wages.

While New York state is late to the paid paternity leave game, it’s coming in hard. The Empire State’s paid leave program has been called the most generous in the country. Parents can take off up to ten weeks after birth, and receive up to 60 percent of their wages, plus job protection. The weekly payment increases each year and is scheduled to hit 67 percent of regular wages in 2022. Washington D.C. has a bill, allowing parents eight weeks of job-protected leave and as much as 90 percent of their regular wages, depending on income.

While Washington State legislators passed a paid leave act in 2007, the law languished for 10 years when lawmakers couldn’t agree about how to fund it. It finally took effect in 2020, providing up to 12 weeks of paid leave at up to 90% of weekly pay. Washington has one of the lowest hourly minimums, applying to those who’ve worked just 820 hours in the past year, or 16 hours per week, compared to the FMLA’s minimum of 1,250. Massachusetts, Connecticut, Oregon, and Colorado have paid family leave laws that will take effect in 2021, 2022, 2023, and 2024, respectively. Many city governments provide paid maternity and paternity leave for municipal employees, including Miami Beach, Chicago, Atlanta, Boston, Kansas City, Hoboken, Pittsburgh, Austin, Nashville, and Salt Lake City. You can find a more complete list here.

States fund parental leave in different ways. Generally, workers and employers pay a small fee that pays into an insurance pool used to replace wages. In California, workers pay a less than one percent payroll tax that feeds into an insurance-based pool run through a state agency. When they need paid family or medical leave they apply to that state agency to fund the wage replacement.

“They’re not working and they’re not getting their paycheck, but they’re getting some of their wages replaced through a check from the state agency because they’ve paid into that fund,” Fleisch Fink said. “So they’re basically getting their money back.”

What Companies Offer Paternity Leave?

An increasing number of companies offer paid paternity and maternity leave to parents. Even Walmart, a company with famously toxic labor practices, has started offering family leave for employees.

Some major American companies are starting to view paternity leave as an important benefit for valued employees. Since 2015, for instance, Netflix has allowed working fathers to take unlimited leave during the first year after a child is born or adopted. Microsoft offers five months of paid leave to birth mothers and three months to all other parents, and requires all of its vendors to offer at least 12 weeks of leave to their employees. Deloitte not only offers extensive paid paternity leave, but provides programs to support parents, making the average time new dads take off 16 weeks.

But not every company is like Netflix or Microsoft. Companies offering progressive paternity leave are the exception, not the rule. According to a 2016 report by the National Partnership for Women & Families, 41 percent of America’s workforce have employers that provide paid paternity leave to some workers and only nine percent of workers work for companies that provide paid paternity leave to all workers. Often, paternity leave is a perk aimed at retaining employees with skills that are in high demand. For lower-income families and individuals, taking paternity leave is far more difficult.

“There are many corporations in the U.S. that have very progressive leave, and we work with them and we support them and of course advocate that corporations and organizations continue to improve their workplaces to become more supportive to parents,” Tim Shand, Global Co-Coordinator of the international fatherhood advocacy group MenCare Campaign, said. “But 95 percent of low-wage workers in the U.S. don’t have the option of taking paid family leave for a new child or even a seriously ill family member.”

For parental leave to apply across the board, the government has to get involved. While both Democrats and Republicans broadly agree on the need for government to tackle paid leave, the form paid leave would take is under considerable debate. Donald Trump advocated for parental leave as a candidate and again in his first State of the Union address as president. Trump’s daughter Ivanka and Florida Senator Marco Rubio proposed a paid leave bill allowing parents to use their Social Security funds to pay for their leave, which critics say ultimately cheats people out of retirement savings more than it helps parents. Meanwhile, Democratic lawmakers New York Senator Kirsten Gillibrand and Connecticut Representative Rosa DeLauro have spent five years championing a family leave bill that would provide 12 weeks of paid leave, funded by small employee and employer payroll contributions. Gillibrand and DeLauro’s bill is still sitting in Congress, but the Biden campaign has voiced its support for providing Americans with 12 weeks of paid leave.

Without a solution from the federal government, the burden of paid leave has fallen to individual states.

Stigmas About Paid Parental Leave

Many fathers seem to still need time to warm up to the idea of paternity leave. Only 17 percent of the California parents who took parental leave from when the law first took effect were men. By 2016, fathers made up 37 percent of the California parents who took paid family leave. Meanwhile, New York dads report a stigma about paternity leave that makes some of them reluctant to take time off from work.

The stigma is clearly misguided. As the famed New York businessman Vito Corleone famously said, “a man who doesn’t spend time with his family can never be a real man.” Plus, failing to embrace paid paternity leave could stand in the way of society’s progress. Parental leave advocates like Tim Shand believe paternity leave is the key part of transforming society for the better.

“We see that parental leave is the single biggest policy lever that can shift norms around caregiving and increase dads’ involvement in the lives of their children, for the benefit of families, for children, and for men themselves,” Shand said.

Shand said men who take advantage of paternity leave become more involved in parents. They bond better with their babies, and later in life, become better dads.

“It provides an opportunity for men to be more directly involved in caregiving, particularly at the beginning of the life of their child,” Shand said.

Through embracing paternity leave, fathers help women stay in the workforce. Shifting gender roles around work and caregiving, Shand said, helps create a more just world.

“One of the things that we clearly see is that when women are more able to access the workplace, more equal society, that it leads to greater growth for everyone,” Shand said. “And so part of that unlocking of women’s potential has got benefits for families and for our broader economy, and of course that can create more jobs, and then additional opportunities.”