Tech industry giants Netflix and Microsoft this week have announced new generous and flexible parental leave policies as an incentive to attract and retain skilled employees in a highly competitive industry. Earlier this week, Netflix introduced an “unlimited” leave policy for new parents to take as much time as they want – with pay — during the first year after a child’s birth or adoption to allow the new family time for bonding and adjustment to the new family lifestyle. The new parental leave policy applies to all full-time, salaried employees throughout its international organization of approximately 2,000 employees.

Microsoft followed suit a day later, announcing that the company will provide paid parental leave of 12 weeks for all mothers and fathers of new children starting November 1. “For birth mothers, this is in addition to the eight weeks of maternity disability leave they currently receive, paid at 100 percent, enabling them to now take a total of 20 weeks of fully paid leave if they choose,” reported Kathleen Hogan, Microsoft’s Executive Vice President, Human Resources.

Other large US tech companies also offer generous paid parental leave benefits. For example, Google offers new mothers 18 weeks of paid leave, and any parent – whether biological or adoptive, and even including a surrogate parent – who will serve as a primary caretaker can take up to 12 weeks of paid “baby bonding time.” Similarly, Facebook offers new mothers and fathers up to four months of paid leave.

These employers are simply trying to compete effectively to attract and retain their top talent, and as a result their parental leave policies are far more generous than U.S. law requires. Currently, the Family and Medical Leave Act (FMLA) requires all employers with 50 or more employees to allow an employee up to 12 weeks of unpaid leave during any 12 month period for the birth of a child and to bond with a newborn or newly adopted or placed child during the first year of the child’s birth or placement.

Moreover, the unpaid parental leave granted under the FMLA is cumulative of other FMLA-eligible leave for which an employee may be eligible during that same 12 month period. For example, if the employee was absent from work for a covered “serious health condition” under the FMLA prior to (and unrelated to) the birth of her child, she will have only the remaining, unused portion of the 12 weeks of unpaid leave available for the birth of the child and newborn care, at least until a new 12-month period begins. Moreover, parental leave under the FMLA cannot be taken intermittently for a healthy child unless the employer agrees; the employee must take all of his parental leave at one time unless his employer agrees that he may take it intermittently or in the form of a part-time working schedule following the birth or adoption of his child.

While many U.S. companies may follow the tech industry’s example by adopting more attractive parental leave policies in order to attract and retain skilled workers, employers should carefully consider FMLA implications in crafting new leave policies. Under the FMLA, an employer may require paid leave to run concurrently with FMLA leave or, in other words, to substitute paid leave for FMLA leave.

Unless the employer provides written notice of that requirement to the employee, however, the employee may elect to have her paid parental leave run consecutively with her unpaid FMLA leave, resulting in the employee’s absence from the work place for a much longer period of time than the employer intends to permit. For example, if a company following Microsoft’s lead  opts to provide a new mother with up to 20 weeks of paid leave prior to and following the birth of her child, but does not notify her that she is required to exhaust her paid leave concurrently with her unpaid FMLA leave, the employee may choose to take her 12 weeks of unpaid FMLA leave only after she has exhausted her 20 months of paid leave, resulting in her continuous absence from work for 32 weeks, about three months longer than the employer intended to permit. Because the FMLA ensures that the employee’s job will remain available to her upon her timely return from FMLA leave, the employer must continue to shift her responsibilities to other hardworking employees or utilize contract or temporary workers until the employee returns.



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