Employers Beware - Overlooked Issues Dealing with Maternity Leave and Military Leave

Many employers believe they know the ins and outs of handling maternity leave and military leave, but some issues are now rising that bear further review.  Let's take the maternity leave issue first. 

Parental Lease Issues

Employees subject to the Family and Medical Leave Act (FMLA) are provided leave rights for both maternity and also for parental leave with the new-born child.  The FMLA requirements are minimum requirements, but some employers go beyond those minimum requirements.  A current case addresses the issue of whether an employer discriminates because of sex by giving more liberal parental leave to female associates compared to their male peers to care for and bond with a new child.  Savignac v. Jones Day, No. 1:19-cv-02443 (D.D.C., 9/25/24).  Court documents indicate the employer's policy entitles new mothers and fathers to 10 weeks of paid family leave, and also entitles new mothers to an additional eight weeks of paid disability leave if they need that time to recover from the physical effects of childbirth.  The policy also offers "up to an additional six weeks of unpaid leave" to new mothers "with approval."  The plaintiffs in the case argue that in practice, new mothers are always able to take the full 18 weeks afforded by the policy, so that in effect new mothers are given eight more weeks of leave than new fathers.  What complicated the case even further, is that the father demanded the treatment given all women with new children, under threat of a lawsuit and adverse public opinion.  The father claimed he was "terminated for his unprofessional email," which he contended was retaliation against him for demanding equal treatment.  A federal judge on October 3, 2024, ruled that these issues warranted a jury trial.  

In addition to the FMLA issues, the law seems to be evolving that, while female parents may be given maternity leave during the time of the effect of the maternity on their job duties, to the extent additional leave is given in the form of parental leave for bonding, the policy and its application must be equal between both mothers and fathers.  

Military Leave Issues

A recent development under the federal military leave laws has arisen where the federal law prohibits employers from discriminating or retaliating against employees and applicants over their military status or military obligations.  In general, the Uniform Services Employment and Re-Employment Rights Act (USERRA) requires an employer to provide an employee on military leave with the same rights and benefits provided to other employees under comparable non-military leave of absence.  The U.S. Department of Labor (DOL) has issued a regulation that provides guidance on what constitutes a comparable form of leave, including a non-exhaustive list of factors for employers to consider.  The factors include the duration of the leave, its purpose, and whether the employee can determine when leave is taken.  The regulation specifies that when the service member employee performs military service, their leave must be given the most favorable treatment accorded to any other comparable form of leave.

The issue is whether the USERRA requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences.  A recent case involves the issue of employers who provide paid sick leave and jury duty leave are required to provide the benefit of paid sick leave accrual and vacation time accrual to employees on military leave.  The issue can be characterized as to whether the USERRA requires employers to provide short-term paid military leave if they provide paid leave for comparable non-military absences, such as jury duty, vacation, bereavement or sick leave.  In Synoracki v. Alaska Airlines, Ninth Circuit Court of Appeals on August 22, followed the doctrine that when addressing the USERRA claims, comparability of the military leave and the other paid leave offered by the employer, is to be determined by examining the length of the leave at issue rather than any type of categorical approach.  Several other federal appeals courts including those in the Fifth Circuit, Seventh Circuit, and Eleventh Circuit have ruled that employers that pay employees for some type of short-term leave must provide equal benefits to employees who take short-term leave for military service.

This article is part of our November 2024 Newsletter. 

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