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municipalauthorities.org │ 31 olicitor s c o r n e r P regnancy l eaVe and P arental l eaVe : W HAT M UNICIPAL A UTHORITIES N EED TO K NOW By Carl A. Misitano, Of Counsel, Steptoe & Johnson Q uestions surrounding pregnancy and parental leave can be deceptively complicated. An authority may have a longstanding "maternity leave" policy that provides time away from work following childbirth but no corresponding parental leave policy. When an employee who is not the birthing parent is preparing to welcome a new child, the natural question is whether the authority must provide that employee with the same leave available to a birth mother. The answer depends less on what the employer calls the leave and more on why the leave is being provided . Federal and Pennsylvania law draw an important distinction between leave associated with pregnancy, childbirth, and a birth mother's medical recovery and leave provided to a parent to care for or bond with a new child. Municipal authorities reviewing their leave policies should understand this distinction, particularly as paid parental leave receives increasing attention at the local level. What Does the Law Require? As a general matter, neither federal law nor Pennsylvania law currently requires employers to provide paid parental leave following the birth of an employee's child or the placement of a child for adoption or foster care. That does not mean, however, that employers have no legal obligations when an employee welcomes a new child. Most notably, the federal Family and Medical Leave Act ("FMLA") applies to employers with 50 or more employees and requires those employers to provide eligible employees with up to twelve weeks of unpaid, job-protected leave for certain qualifying reasons, including the birth of a child and the placement of a child for adoption or foster care. Eligible employees are entitled to use FMLA leave to bond with a newborn or newly placed child regardless of sex. A birth mother may also use FMLA leave for her own serious health condition arising from pregnancy or childbirth, including periods during which she is medically unable to work because of pregnancy, childbirth, or a related medical condition. Thus, while both parents may be entitled to FMLA leave for bonding with a child, the birth mother may have an additional qualifying reason for using FMLA leave; i.e. her own pregnancy or childbirth- related serious health condition. The FMLA establishes minimum leave rights for eligible employees. It does not determine whether an employer may choose to provide additional paid maternity or parental benefits. When an employer voluntarily provides such benefits, however, federal and state anti- discrimination laws become important. Pregnancy Leave Is Different from Parental Leave One of the most important considerations for employers is the distinction between pregnancy- related medical leave and parental or bonding leave. Leave provided because an employee is pregnant, has given birth, or is recovering from childbirth may generally be limited to birth mothers. For example, an employer may permit a birth mother to receive short- term disability benefits or use paid leave during a period in which she is medically unable to work following childbirth without being required to provide a non-birthing partner with an equivalent benefit. The distinction is that the benefit is associated with the employee's medical condition rather than her status as a parent. Parental leave is different. Leave provided for the purpose of caring for or bonding with a newborn or a newly adopted or foster child is a benefit associated with parenthood, rather than pregnancy or a medical condition. If an employer elects to provide that type of leave, federal anti-discrimination law and the Pennsylvania Human Relations Act generally require the benefit to be