We are a small employer in New York.
Under New York and/or Federal Law, may we differentiate in the amount of paid and/or unpaid parental leave based on whether the employee gives birth to a child (presumably limited to women for the forseeable future) vs. adoption vs. spouse giving birth to the child?
Does the disability insurance that we are required to purchase through NY state provide any benefit for the delivery?
The best practice would be to offer the same benefits to all new parents, regardless of their gender or reproductive status.
Just a recap to be sure we are on the same page: The federal FMLA probably does not apply to you, if you have fewer than 50 employees within 75 miles. That law requires that any new parent can take up to 12 weeks of unpaid leave to care for and bond with a newborn. The law specifically applies to fathers as well as mothers, and to adoptive parents of both sexes. The thought process is that when a child develops a secure bond with a parent, it benefits society as a whole. FMLA also applies to foster children. It also applies to anyone who is assuming parental responsibilities for a child under the age of 18, including grandparents, aunts and uncles, legal guardians and even less formal arrangements. Check out this recent announcement by the US Department of Labor: http://blog.laborlawcenter.com/2010/06/30/new-fmla-entitlement-for-aunts-uncles-grandparents-same-sex-parents/
While you are not legally required to grant FMLA, it gives you an idea of the current legal thinking on the topic. Several states specifically have a law that adoptive parents must be given the same employment benefits as birth parents. At this time, New York does not have such a law.
Pregnancy is also a serious health condition under FMLA and the employee is entitled to unpaid time off for prenatal appointments. Male employees are entitled to unpaid time off to attend their pregnant wifes prenatal appointments, to provide emotional and psychological support.
Pregnancy and childbirth result in a period of disability for the mother. Usually the new mother cannot work for 4 to 6 weeks after a normal delivery, and it can be 8 weeks or more for a c-section. Depending upon the mothers health and the job, the pregnant woman may also be unable to work for 4 weeks or more before the due date. During this period of physical disability, the employee qualifies for state short term disability payments in New York.
There is no period of physical disability for paternity or for adoptive parents, therefore they do not qualify for short term disability payments.
The Federal PDA or Pregnancy Discrimination Act requires that any benefits offered to employees for other medical conditions (paid or unpaid leave, reinstatement, benefits, continued insurance, etc.) also be offered to pregnant women. This law probably does apply to your small company.
Theoretically it would be legal for you to offer better benefits to pregnant women than to other employees, but it is probably only a matter of time before this is successfully challenged in court. The federal courts have repeatedly ruled that denying benefits based on pregnancy is illegal sex discrimination because only women get pregnant. It is probably only a matter of time until a court rules that it is illegal sex discrimination to offer better benefits to pregnant women because men do not get pregnant. Both New York and federal law prohibit discrimination based on sex.
Also be aware that infertility is now a disability under ADA, the Americans with Disabilities Act. If you offer fewer benefits to an infertile woman who adopts a child than to a woman who gives birth to a child, you could very well face a lawsuit for illegal discrimination based on a disability.
Thanks for posting the most interesting question in the past month! If you have additional questions or details, feel free to post them.
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