Article Summary

Oswald

The military has taken a huge step forward in the fight for paid maternity, paternity, and adoptive parent leave. Military members often looked longingly at the FMLA benefit, but a bill introduced to the House on March 17, 2016, The Military Parental Leave Modernization Act, would grant new fathers, adoptive parents, and both spouses of dual-military families 12 weeks of paid paternity leave.

This expert analysis by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on June 24, 2016.

By R. Scott Oswald

Paid maternity leave, mandatory in almost all other developed nations, has long been a topic of discussion in the United States.  A few major companies in the United States provide paid maternity leave (Google, for example, has offered 18 weeks of paid maternity leave since 2007), but until recently the Family and Medical Leave Act (FMLA) was the best option for most new mothers and fathers in the U.S.  Even FMLA fell short of the goal:  FMLA provides 12 weeks of unpaid leave for both mothers and fathers following the birth or adoption of a child.  Additionally, there are restrictive criteria that must be met to qualify for this unpaid leave.  Eligible moms and dads must be full-time employees with at least 1250 hours of work in the past 12 months, and they must work in a business that has at least 50 employees in a 75-mile radius.  Critics have contested that this is not enough time, and that most families cannot afford to go 12 weeks without pay.

Military members, however, often looked longingly at the FMLA benefit.  Under existing law, the military provided 6 weeks of paid maternity leave (leave not chargeable as regular leave), and only 10 consecutive days of paid paternity leave.  Adoptive parents were allowed 3 weeks of leave.  A proposed law, the Military Opportunities for Mothers (“MOM”) Act, sought an increase to 12 weeks, but did not find much support as it did not provide any protections for spouses or adoptive parents.

In the absence of legislative action, the Navy and Marines took the lead in July 2015 and announced that they would provide 18 weeks of paid leave retroactive to January 1, 2015.  Twelve of the 18 weeks could be taken at any point during the year following the child’s birth, allowing flexibility in creating a leave plan with minimal mission impact.

In March 2015 the Air Force prolonged the time that a new mother is non-deployable, from six to twelve months after birth, effective and retroactive to births on or after March 6, 2015.  The Air Force then announced in December 2015 that it too was planning to provide 18 weeks of leave.  The moves by the Air Force, Navy, and Marines left the many in the Army questioning why such generous benefits couldn’t be provided across all of the uniformed services.

In January 2016, Defense Secretary Ash Carter answered with an announcement that across all armed services, women would receive 12 weeks of fully paid leave effective February 5, 2016.  For those Sailors and Marines who were pregnant when this defense-wide policy was announced, and up to March 3, 2016, the original 18-week benefit would be applied. Service members who were already on maternity leave on the effective date received six additional weeks of maternity leave.  Service members who were on maternity leave on the effective date but have since returned to duty are authorized to return to a maternity leave status, and can take up to a total of 84 days of maternity leave.

Since childbirth is qualifying for convalescent leave, Service Secretaries have authority to adjust maternity (convalescent) leave without the approval of Congress.  Congress must approve changes to policies for adoptive parents and fathers, as this is paid leave outside of maternity leave.  At the time of his announcement in January, Defense Secretary Carter and the DoD were seeking approval from Congress to expand paternity leave from 10 consecutive days to a 14-day noncontinuous leave benefit.  Congress will also be asked to approve a policy granting two weeks of leave for the second parent in a dual-military couple who chooses to adopt.  A bill introduced to the House on March 17, 2016, The Military Parental Leave Modernization Act, would grant new fathers, adoptive parents, and both spouses of dual-military families 12 weeks of paid paternity leave.  Presently, paternity leave is only authorized for married Soldiers on active duty whose wife gives birth, and it cannot be applied to single Soldiers who father a child.  It is unclear whether a change is in the works for this stipulation.

The military has taken a huge step forward in the fight for paid maternity, paternity, and adoptive parent leave.  If 12 weeks can be taken by military members who each have unique roles in their units and not detrimentally impact the mission, then surely other public and private sector employers can afford the same.  Not only is this a positive step forward for Service members and their families, but for the nation as a whole.