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Post Paternity Rights

In October 2021, United States Secretary of Transportation Pete Buttigieg became the subject of public commentary when it was reported that he had taken several weeks of “paternity leave” from his cabinet position in the midst of numerous nation-wide transportation emergencies. Some accused Secretary Buttigieg of job abandonment. Others commended him as a sort of hero for what they considered to be a rebellious act against “the patriarchy.” This occurred in Washington, DC, and Secretary Buttigieg’s legal right to take paternity leave are presumably subject to federal law and are outside the scope of this blog posting. (The ethical and social considerations of the leave will also not be discussed in this article.) However, this current event raises an interesting question about what “paternity leave” rights California males have.

California Protected “Paternity Leave”

California law provides protected employment leave for not only mothers, but also fathers, of new born children and newly adopted children.

Effective January 1, 2021, The California Family Rights Act (“CFRA”), Government Code section 12945.2, was amended to broaden the definition of “Family Care and Medical Leave” to include “the birth of a child of the employee” and “the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.” Cal. Gov’t Code §12945.2(b)(4)(A).

California’s Department of Fair Employment and Housing, which is tasked with creating the implementing regulations of the CFRA, has defined the term “the birth of a child” to include “bonding with a child after birth.” Cal. Code Regs. Title 2, §11087. Thus, new fathers can take protected time off work just to stay home with their new child, even if there is no health problem involved.

These leave rights apply to “any employee,” and are not limited to “birthing people” or the mother of the child. Males, non-birthing people, and even men, may legally take leave from their jobs simply to “bond” with their new born or adopted children. (Notably, there are several other requirements an employee must meet to be eligible for this type of protected leave, including having worked a minimum number of hours for the employer over a minimum period of time, a requirement to give notice to the employer, and other requirements which are outside the scope of this article.)

Qualifying employees, including fathers, are entitled to take 12 workweeks of leave in the 12 months after their child’s birth (or the adoption). This leave is protected in that an employer must grant it with only narrow exceptions. The employer must also not discriminate, retaliate, or harass the employee for taking the leave. The employee is entitled to a “guarantee” from the employer that after the leave they will be returned to the same or a comparable position.

Paternity leave taken under CFRA is not paid directly by the employer, but the State of California, through its Employment Development Department, may pay qualifying employees up partial wage replacement under its Paid Family Leave program. A qualifying employee, including a father, may receive up to 8 weeks of Paid Family Leave benefits in a 12-month period.

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