Paternity Leave in Florida Explained
Paternity leave allows new fathers time off from work to bond with their newborn or adopted child. The amount of time off, however, depends upon marital status and whether the father is entitled to such time under federal law, namely the Family and Medical Leave Act.
Currently, Florida law does not provide statutory entitlement for paternity leave, meaning there is no legal requirement for employers to offer time off to employees. Workplaces may offer benefits such as the Family and Medical Leave Act (FMLA) or contractual benefits (like sick leave and vacation time) that may cover concerns relating to paternity leave. However, if it is not contractually provided and not required by law, then Florida law does not require such time off. Therefore, the obligation to provide parental leave would be more contractual than statutory.
Florida law requires employers with 50 or more employees to grant up to 12 workweeks of unpaid, job protected leave to all eligible employees, under the eligibility requirements of the Family and Medical Leave Act. These requirements stipulate that employees must meet FMLA’s definition of an eligible employee , and they must be requesting FMLA leave for a covered reason such as the birth of a child.
In addition, for the purposes of FMLA leave, the definition of parent includes biological, adoptive, foster, step, surrogate, legal guardian, or other persons who stand in loco parentis (such as grandparent or stepparent). So a father, whether married or unmarried, would be eligible under FMLA leave for time off related to the birth or placement of a child.
Also, many private employers in Florida offer some type of paid parental leave. For example, business owners themselves tend to be sympathetic to their employees, as many offer generous time off to male employees. Further, many employees with jobs in sales and services get paid time off for the birth of a child.
So although there is no statutory right to paid or unpaid parental leave for fathers (as is the case under Florida law for mothers as well), there are some legal rights under federal law, and some of it will depend on individual employer policies.
Federal Laws that Affect Paternity Leave
In addition to state law, federal regulations also govern FMLA and how it applies to paternity leave. Under the Family and Medical Leave Act (FMLA), paternity leave (or the more general parental leave that includes maternity leave) is a category of leave that is protected under federal law. Additionally, as a parent the limitations identified below for paternity leave in the Florida statutes do not apply to parents qualifying for parental leave under the FMLA.
The FMLA allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period when a spouse gives birth. However, the employee must work for an employer that is covered by the FMLA. Additionally, the employee must qualify for leave under the FMLA and be eligible.
To qualify, the employee must:
Not all employees are eligible to use the leave under the FMLA. An employee is not eligible if the employee does not work for a covered employer, if the employee is not one of the 50 employees that are closest to the work site, or if the employee has not been employed for at least 12 months and worked at least 1,250 hours during the previous 12 month period.
During the 12-week leave period, an employee is entitled to be restored to his or her same or equivalent position. During the leave, an employee can choose to use accrued paid time off as well. Employers are not required to pay an employee while he or she is on leave. The FMLA also does not guarantee the employee will receive or benefit from any payment for the leave taken.
State Laws Regarding Paternity Leave
Florida is one of the few states that provides specific paternity leave rights for fathers. As long as eligible, fathers can take six weeks of paternity leave from work to stay home with their newborn children. In addition, fathers in Florida must provide at least four weeks’ notice to request paternity leave.
Florida does not have a state law that requires employers to provide paternity leave to new parents. Still, Florida state law provides paternity leave rights under state government employers’ policies. Currently, there is no effort to expand the right to take paternity leave to private employers in Florida.
Employer’s Paternity Leave Policy
Beyond the legal requirements, some Florida employers offer additional paternity leave as an employee benefit. The extent of this benefit will depend on the company’s policies and the employee’s specific circumstances. Paternity leave may consist of, for example, unpaid time off, paid parental leave, and the ability to use sick days for paternity leave. Similar to maternity leave, an employee’s total available time off benefits will impact what a Florida employee can take advantage of for paternity leave. Specifically, many companies do not differentiate between maternity leave, paternity leave, or parental leave and simply allow employees to use the company’s allotted paid time off (PTO) for childbirth, adoption, or foster care.
Before proceeding with an employment-related issue involving parental obligations, Florida fathers should check with the human resources department in their office to determine the company’s specific policy on paid time off, leave, and parental needs.
How to Apply for Paternity Leave
Florida is an "at-will" state which means that it is assumed that any employee should retain their employment through their good conduct and ability to perform their job well unless they are working under a contract. Firing or laying off employees for any reason that can be perceived as discrimination is illegal, and this includes the use of paternity leave. Florida does not have any laws that specifically deal with paternity leave and many businesses will rely on the federal standards set by the Family Medical Leave Act or FMLA, to assess an employee’s eligibility to take leave.
Many Florida employers have between two and three different categories of leave, sometimes called family leave, medical leave or sick leave , and personal leave. The employee can use his or her judgment as to which category their absence falls into. Employees in Florida are not entitled to paternity leave under the federal FMLA if they work for a small employer (those with fewer than 50 employees), or have worked for less than 1,250 hours in the previous year.
To apply for paternity leave, the employee should submit a request directly to their employer. The request can include specified times during which he or she is requesting time off including the estimated time around the baby’s birth and can specify how he or she wants to use sick leave, vacation, or unpaid leave. He or she should keep a copy of this request and follow up in writing or by email if they do not hear back twenty-four hours later. He or she may need to obtain a letter from their doctor to confirm that they are unable to work for a period of time, but this should not be sent along with the original request for paternity leave.
Types of Challenges and Considerations
In Florida, the challenges for new fathers seeking paternity leave can vary widely. From the onset, it is important to underscore that many of these challenges can go far beyond that of a mother who does not receive the full protection of FMLA when she wants maternity leave. Like it or not, the most well-paid employee often drives the decision-making when it comes to things like who gets a raise, who gets promoted, and who gets to do what and when. No matter how qualified a candidate for leave, their decision to take leave may negatively impact their career and that of their spouses as well. This is more pronounced for those who have recently begun their careers or those who are early in their careers where promotions are impacted by initiative and availability – not to mention that the most successful employees often end up working the most overtime. Like it or not, (and the law notwithstanding), a new mother or father will spend time on leave with baby when they could be contributing to the office’s bottom line.
Furthermore, while fathers may think maternity leave is covered by FMLA, just like women, they are also subject to the same requirements as women require from their employer to know their requirement for return to work. Many businesses have polices that supersede FMLA requirements and, due to their private company nature, just do not apply to employees in the same manner. A business may consider a business’ obligation to provide paid time off take precedence over any requirements to allow fathers time to care for their newborn babies. Florida law allows for an employee to return to work 90 days after birth or leave. Even under FMLA, that 90 days can be considered for "intermittent" leave, meaning they can work part of the day and be with their newborn for the remaining time. If they are not timely in their request for return, an employer may eliminate their job requirement to protect the position for the mother.
Future of Paternity Leaves
As paternity and "family leave" laws are slowly gaining traction in the United States, lawmakers in Florida have begun to address the lack of job protection for working fathers of newborns. In January 2018, Martha Barrett and Congressman Charlie Crist introduced HB 699, "The Florida Family Leave Act", to allow up to six weeks of family leave to caregivers of newly born, adopted, or fostered children. The bill would also "require employers to grant certain employees family leave, and preempt special acts relating to family leave;" making it no longer lawful for a covered employer to refuse to provide required family leave. In an effort to bring up this bill, the President of the Florida Bar, Bar Board of Governors, and out-going President of the Florida Senate, as well as other Florida Bar Associations have endorsed a Resolution supporting the Florida Family Leave Act. In December of 2018 , Senators Jeff Brandes, Wilton Simpson, and Travis Hutson also submitted Bill 189 to Florida Senate. "The bill specifies requirements for paid family and medical leave and contracts to provide products and services related to the creation of a family and medical leave fund." Although the bill is currently limited to 10,000 state employees, it would apply to all state executive employees to provide a window into the potential success of Florida family and paternity leave laws. With paternity leave demand steadily increasing in the United States, expectations for Florida to keep up with other states in the coming 5 to 10 years are reasonable. Regardless of advancements, aspiring fathers can make use of their current Family Medical Leave and Occupational Leave, when available.
