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Gender Difference in Yahoo Paid Parental-Leave Program Is OK Legally

By Allen Smith  6/4/2013

Yahoo is in the news again—this time for providing employees with paid maternity and paternity leave, instead of its announcement earlier this year that it was limiting telecommuting.

Moms are granted more paid leave than dads at Yahoo. Both receive eight paid weeks to bond with a child, but mothers can take another eight weeks’ paid leave after pregnancy.

Lawful Policy

“Generally speaking, yes, it is lawful for an employer to provide greater paid maternity leave than paid paternity leave,” Camille Olson, an attorney with Seyfarth Shaw in Chicago, told SHRM Online May 30, 2013. “This practice does not run afoul of federal anti-discrimination laws, so long as the difference in leave benefits between genders is attributed to the period of time that the mother is incapacitated because of pregnancy, childbirth or related medical conditions.

“Neither the FMLA [Family and Medical Leave Act] nor the ADA [Americans with Disabilities Act] requires any paid leave of any kind,” Megan Norris, an attorney at Miller Canfield in Detroit, agreed May 29, 2013.

But she added, “Typically, however, the mother will get paid for approximately eight weeks because that is the time she is considered ‘disabled’ under a short-term disability policy. So if you said that the mother gets paid for her disability and then up to eight weeks of additional pay, which would typically be 16 weeks of pay, and the father only gets paid for eight weeks, there is nothing wrong with that at all.” After all, “The father did not give birth.”

Remember, though, that under the ADA, pregnancy generally is not considered a disability, even if it is a disability under a short-term disability policy, unless there are pregnancy-related complications.

Employers that offer paid maternity and paternity leave “need to distinguish between caregiver/bonding leave, which should apply equally to eligible men and women, and pregnancy-related leave, which can provide a nondiscriminatory basis to pay eligible women more,” explained Anne Larson, an attorney at Ogletree Deakins in Chicago, in a June 3, 2013, interview.

Parental Leave

“I would not frame any of this as ‘maternity’ or ‘paternity,' ” Norris cautioned. “I would rather differentiate on purpose (e.g., disability vs. caregiver) than on gender.”

“Yahoo is granting both parents eight weeks of paid parental leave—not maternity vs. paternity—and then granting the mother an additional eight weeks of paid leave,” Norris added. “My understanding is that Yahoo is doing this to be competitive in their industry.”

“Companies should consider adopting policies and benefits that make the most business sense,” Olson said. “While paid parental leave may seem like a great idea on paper, employers need to be sure that they are financially capable of supporting these benefits and that their workforce is staffed with the appropriate skillset to adequately cover any prolonged employee absences potentially triggered by a generous paid-leave policy. Also, in determining whether a paid parental leave policy is a realistic possibility, employers may also want to consider the demographics of their workforce as, in theory, this type of benefit offering would be more heavily utilized by a younger population.”

Paid Leave—A Growing Trend

“While Yahoo’s parental-leave benefits are significantly more generous than those provided by most employers, we are gradually seeing a trend of companies offering more comprehensive parental-leave policies than required by state and federal laws,” Olson said, though she noted that some states, such as California, mandate paid family leave to bond with a new baby.

“The simple fact remains that a vast majority of employers do not offer paid or unpaid leave beyond 12 weeks, and it is still not commonplace for employers to provide paid paternity leave at all,” Olson said.

In addition, she observed, “Recent studies have shown that even when paid paternity leave is offered, only a small percentage of fathers actually take advantage of this benefit. Therefore, if a company determines that it is unable to offer paid paternal leave or extended maternal leave, other options such as flexible work schedules or the ability to work from home might become an effective substitute.”

New Benefits

Yahoo also has unveiled other new benefits “to support the happiness and well-being of Yahoos and their families,” along with paid leave to welcome a new child to the family (including through adoption, foster child placement and surrogacy).

These new benefits include:

  • Daily habits reimbursement: Yahoo will pay up to $500 for daily necessities, such as laundry, housecleaning, groceries, takeout food and child care, when employees bring home a child.
  • Child of a Yahoo gift package: The company will provide Yahoo-branded baby gifts for newborns.
  • Perks for pets: Yahoo also will give out company-branded gifts for new cats and dogs.
  • Adoption: Yahoo’s Adoption Assistance program helps employees offset the costs of adopting a child by providing up to $5,000 of eligible expenses per child, for a maximum of two children per lifetime.
  • Leave for five-year employees: The company now offers up to eight weeks of unpaid leave every time an employee passes a five-year milestone.

Yahoo released a statement about its new benefits, saying: “We’ve been very focused on making Yahoo the absolute best place to work. Over the last several months, we’ve introduced new benefits like free food to make Yahoos’ days easier, new smartphones to encourage innovation, and updated computers to speed productivity. We also rolled out aggressive quarterly and annual goals for the company and for individuals, internal feedback tools for new products, as well as weekly all-hands meetings to communicate transparently on the most important topics in the company.”

Allen Smith, J.D., is manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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