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Paternity Leave: Mom Talks Law

Q: My husband wants to take a paternity leave from his workplace after our baby is born in December, but he's scared to ask because he will be the first man in his company to request leave. Can the company refuse his request, or, worse yet, could he be fired for trying to take such a leave?

A: I have always been surprised more men don't take paternity leave, and I hope we soon see societal changes in attitude that make it more comfortable for men to seek to take advantage of family leave laws.

Like all legal issues, however, the answer to the question whether a specific person is entitled to childcare leave is, of course, "it depends." A number of factors weigh in to whether an employer is required to provide leave, including, among others: the size of the employer, the particular responsibilities of the employee, the amount of time an employee has been with a company, and even the company's own policy.

Accordingly, I can't determine specifically whether a particular individual is entitled to leave. I can, however, provide some more information with respect to the basic facts about leave law and direct you to some resources for further investigation.

Leave laws do apply to men and women. It is a common misconception that the Family and Medical Leave Act (FMLA) and the Minnesota Parenting Leave Act only apply to women seeking leave. In fact, both laws, when they apply, provide that employers must give leave (12 weeks under the federal statute, 6 weeks in Minnesota) to men or women at the birth or adoption of a child.

The size of the employer matters. The Family and Medical Leave Act applies to employers who have 50 or more employees, and the Minnesota statute applies if an employer has 21 or more employees. Thus, some small employers are not required by these laws to provide leave. That said, many small employers do have policies in place to handle leave issues and may be required by their own policies to provide some leave.

Leave mandated by statute is unpaid. Because many midsize and large employers commonly provide some amount of paid maternity leave, many have the misconception that the law requires paid leave. In fact, the law only requires that leave be granted, it does not require that it be paid. It is becoming more common for companies to offer paid leave to women taking maternity leave, but this is usually through their policies and structure with respect to short-term disability benefits, and thus, generally, paid leave is commonly available only for women.

Remember, navigating family and medical leave law is tricky, even for the employment law savvy. These are only some of the many provisions of the state and federal statutes with respect to paternity leave. You can always consult an employee handbook or the company's HR department.

But, if you're still questioning your rights under the law, or, if you are nervous about asking your employer directly, learn more about your spouse or significant other's rights by reviewing the Minnesota Department of Labor and Industry parental leave brochure . If you're so inclined, you can access and read the full text of the Family Medical Leave Act and-or the Minnesota Parenting Leave Act.

Finally, anytime you believe your rights have been violated, you should contact an attorney who specializes in employment matters. You can find a referral from the Minnesota State Bar Association Lawyer Referral Service at www.mnbar.org

Oh, and, of course, we shouldn't forget the most important thing: Congratulations on the impending new addition to your family!

DISCLAIMER - The contents of this column are not legal advice. The information contained herein is intended to increase awareness and understanding of basic legal issues and to provide a starting point for the reader's reference. Legal columns like this one are not an appropriate substitute for contacting an attorney about your specific situation.

Twin Cities attorney Leondra Hanson, an instructor at Globe University/Minnesota School of Business, discusses the legal issues facing parents and answers your questions about the law and your life. If you'd like to ask Leondra a question, please submit it here.

You can also visit Leondra at her personal web log, Mommy Tracks, where she observes - sometimes humorously, sometimes seriously, but always honestly - life in the perplexing role of mother.

Categories: Pregnancy,

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