Paternity Leave, FMLA, and State Leave Laws

Created by FindLaw's team of legal writers and editors.

Most new or expecting fathers wish they could be more involved at the birth or adoption of a child, yet many working dads lack the paternity leave (the time off from work given to new fathers at the birth or adoption of their child) they need to be with their family, while others are offered only unpaid leave.

The federal Family and Medical Leave Act (FMLA) covers about half of American workers and guarantees 12 weeks of unpaid leave. A handful of states also have laws requiring paid leave. However, most working fathers get no leave at all, leading advocates for fathers and families to call for stronger laws.

Desire for Paternity Leave

Research has consistently shown that most fathers want to play a greater role in their family’s life. Almost all fathers rank their children as the top priority in their life, and three out of four want to spend more time with their children. A survey of 3000 working fathers found that almost 90% of them thought it was important for employers to the offer this important time off.

Yet the reality that many fathers face often doesn’t match their desires. The majority of fathers take only one day of leave for the arrival of a new child and only a quarter take more than a week. Lack of paid leave, potential stigma and harm to a father’s career all stand in the way of greater leave opportunities.

Paternity Leave Under the FMLA

The FMLA allows eligible employees to take up to 12 weeks of leave for reasons such as the arrival of a new child or to care for a pregnant spouse or sick child. This leave is unpaid, though employers are required to continue your healthcare coverage during your leave.

To qualify for leave under the FMLA, an employee must have worked for over 12 months for the state or federal government, a public school or private employer with more than 50 employees. In the last year, the employee must have worked 1,250 hours at the job and must work at a location with 50 or more employees within 75 miles.

State Laws Mandating Paternity Leave

Several states mandate paternity leave that is more inclusive than leave under the FMLA, including states with laws providing leave for care of partners and children in domestic partnerships and civil unions.

In 2004, California became the first state to require paid paternity and maternity leave for all employees. California’s Paid Family Leave Insurance program covers part-time workers and employees of small businesses and allows workers to collect 55% of their earnings, up to a maximum amount, while on leave. Currently, New Jersey, Rhode Island and the District of Columbia also offer paid leave for fathers.

Proposed Changes to Paternity Leave Laws

Fathers who take leave can offer many benefits for a new family. Research has shown that men who help in caring for children after birth go on to divide family responsibilities more evenly between parents later in life; their children are more likely to have improved health. Mothers whose partners take leave have higher earnings and less depression, while men who take leave benefit from longer life expectancies.

Many advocates have called for expanding the laws because of these benefits. In 2015, President Obama called for the Department of Labor to investigate how California’s paid leave system might be adopted by other states. Advocates for fathers argue that paternity leave laws should be expanded to ensure:

  • More Paid Leave: The lack of pay is the primary reason most fathers do not take time off. Only 10-15% of U.S. employers offer paid leave for fathers, and these are almost exclusively white-collar jobs.
  • Protection Against Stigma: Even when paid leave is offered, many men do not take advantage of it for fear that they will appear less dedicated to their jobs. Direct or unspoken disapproval from colleagues and superiors can prevent employees from benefiting from leave.
  • Guaranteed Job-Protection: Adopting policies that make sure fathers can return to their jobs after leave without job loss, demotion or other negative career effects.
  • Expanded Coverage: Allowing part-time and small-business employees leave access will help expand the benefits of leave to workers not currently covered under federal law.

Your Right to Paid Leave

As society becomes more open to respecting the role of fathers in the home with young children, many states and some individual companies are beginning to offer more generous programs. This has been a relatively new development so the laws are still changing.

Have Questions About Paternity Leave or the FMLA? Get Legal Help

If you have questions about workplace leave under state or federal law or believe that you have been wrongly denied leave or discriminated against because you took leave, consider contacting a family law attorney near you who can help answer your questions and protect your rights.

Next Steps

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