What am I legally entitled to for Parental Leave?

Parental Leave can be a complicated subject to address at any point of a job, but particularly so during the interview process before you even start. Individuals are nervous to ask too many questions out of fear of jeopardizing their chances, and it’s a topic people usually aren’t that prepared for until they’ve gone through it personally. This week, we begin a multi-part series on Parental Leave, starting with what individuals are legally entitled to.

What does Parental Leave typically comprise of?

Parental Leave is an umbrella term covering employee leave for the care of a new child. Let’s take a look at the key aspects:

1. Type: Leave can either be a general policy for any new parents or be broken down into leave for birthing parents vs. non-birthing parents. Leave can cover the birth of a child or the adoption of a child.

2. Duration: Leave can last a period of time before and after the birth or adoption of a child and taken continuously or in parts.

3. Pay: Leave can be fully paid, partially paid, or unpaid.

4. Eligibility: Leave can require meeting a set of requirements, such as minimum tenure, wage, full-time vs. part-time status, or contributions to specific government funds.
   
   

Federal law sets the minimum

The Family and Medical Leave Act (FMLA) provides 12 weeks of unpaid leave per year with job protection covering cases like parental and medical leave. The specific conditions to qualify include:

1. Working for a public agency, school, or company with 50 or more employees within 75 miles

2. Working at the employer for at least the last 12 months or 1,250 hours over the past 12 months

We’ll be dedicating a separate post specifically for the case of smaller companies, but the above section provides the absolute minimum of what individuals are entitled to.

States can provide additional benefits

Beyond the federal minimum, we’ve summarized below the buckets states typically fall into with their Parental Leave requirements. For deeper dives, take a look at the Paid Family Leave resource from the Bipartisan Policy Center and Paycor’s Maternity Leave Laws by State.

1. Only FMLA: Nearly half (23) of all states do not mandate additional unpaid or paid leave, including Alabama, Florida, Michigan, Pennsylvania, Texas, and Virginia.

2. Paid Leave: 13 states expand benefits requiring paid leave from as little as 40 hours (Illinois starting 2024) to 12 weeks, such as California, Hawaii, Maryland, New York, and Washington.

3. Broader Eligibility: Instead of 12 months employment with a single employer, some states opt for more generous eligibility rules such as a period of employment with multiple employers, a period of in-state employment, or cases of self-employment.

There are two follow-up points on Paid Leave worth noting. First, most states requiring Paid Leave do not require the pay to cover 100% of your regular wages. States can put limits on the percentage of regular wages (eg. 58% for Hawaii and 100% for Oregon) in combination with a dollar maximum per week (e.g. $1,000). Second, not all states that provide Paid Leave guarantee job protection afterwards. Some states require a minimum employment duration beforehand to provide protection, and others do not provide it at all.

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Our motivation for starting this series comes from a number of user questions around “Is Parental Leave negotiable? If so, how does that work? If not, how do I still set myself up for success?” These questions may be tricky in today’s job market, but our mission is always to challenge the status quo when it means a more equitable environment for individuals. After setting up the foundation this week, we will spend the next few weeks covering the trends we see at companies, differences in leave provided to birthing vs. non-birthing parents, what it means to negotiate, and other questions individuals frequently wonder, but may be hesitant to ask.

For advocacy and beyond,
The Ask Ginkgo Team