Parental leave in the United States is a patchwork of federal FMLA protections and state-level paid family leave programs. The federal Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid, job-protected leave for eligible employees, while a growing number of states have enacted their own paid family leave (PFL) laws that provide wage replacement during the leave. There is no federal requirement for paid parental leave.

This guide covers how parental leave works in the US in 2026: the FMLA framework, the state PFL landscape, the eligibility criteria, and what employers must do.

Key takeaways

  • The FMLA provides 12 weeks of unpaid, job-protected leave for eligible employees at employers with 50+ employees.
  • 13 states and Washington DC have enacted paid family leave programs that provide wage replacement during FMLA leave.
  • FMLA eligibility requires 12 months of employment and 1,250 hours worked in the preceding 12 months.
  • FMLA leave is available for the birth of a child, adoption, or foster care placement.
  • Employers with fewer than 50 employees may be exempt from FMLA, but state PFL laws may still apply.

The FMLA framework

The FMLA is the federal baseline for parental leave in the US. It provides:

  • 12 weeks of unpaid, job-protected leave in a 12-month period
  • Leave for the birth of a child, adoption, or foster care placement
  • Job protection — the employee must be restored to their same or an equivalent position
  • Health insurance continuation — the employer must maintain group health insurance during leave

The FMLA does not require the employer to pay salary during leave. The leave is unpaid, though the employee may use accrued paid time off (PTO) or vacation to cover part or all of the period.

Eligibility criteria

To qualify for FMLA, the employee must:

  • Have been employed for at least 12 months (not necessarily consecutive)
  • Have worked at least 1,250 hours in the preceding 12 months
  • Work at a location where the employer has 50 or more employees within a 75-mile radius

Employees who do not meet these criteria — including those at small employers, part-time employees, and those with less than 12 months of service — are not covered by FMLA.

State paid family leave programs

As of 2026, 13 states and Washington DC have enacted paid family leave programs that provide wage replacement during FMLA leave. The programs vary significantly in duration, benefit rate, and eligibility.

State Maximum weeks Benefit rate (2026)
California 8 weeks 60–70% of salary
New York 12 weeks 67% of salary
New Jersey 12 weeks 85% of salary
Washington 12 weeks Up to $1,476/week
Massachusetts 12 weeks Up to $1,129.82/week
Connecticut 12 weeks Up to $952.67/week
Oregon 12 weeks Up to $1,524.20/week
Colorado 12 weeks Up to $1,202/week
Maryland 12 weeks Up to $1,000/week
Delaware 12 weeks Up to $900/week
Maine 12 weeks Up to $900/week
Minnesota 12 weeks Up to $1,000/week
Washington DC 8 weeks Up to $1,000/week

Rates and caps change annually. Employers should check the current year’s rates for each state where they have employees.

How FMLA and state PFL interact

In states with paid family leave, the programs typically run concurrently with FMLA leave. The employee takes 12 weeks of FMLA leave, and the state PFL program provides wage replacement during part or all of that period.

The employer’s obligation is to:

  1. Designate the leave as FMLA — the employee must be notified that the leave is FMLA-qualifying.
  2. Process the state PFL application — some states require the employer to complete part of the application.
  3. Maintain health insurance during FMLA leave — the employee’s share of the premium must continue to be paid.
  4. Restore the employee to their position at the end of the leave.

Worked example

Maria works in New York and earns $75,000 per year. She takes 12 weeks of FMLA leave after the birth of her child. New York’s Paid Family Leave provides 67% of her average weekly wage, up to the state maximum.

  • Maria’s average weekly wage: $75,000 ÷ 52 = $1,442.31
  • 67% × $1,442.31 = $966.35 per week
  • Total PFL benefit over 12 weeks: $11,596.20

Maria’s employer does not pay salary during the leave but must maintain her health insurance. Maria uses accrued PTO to cover the gap between her PFL benefit and her full salary.

Employer obligations

US employers have six core duties:

  1. Determine FMLA eligibility — check the 12-month and 1,250-hour thresholds, and confirm the employer has 50+ employees within 75 miles.
  2. Designate FMLA leave — notify the employee in writing that the leave is FMLA-qualifying.
  3. Maintain health insurance during FMLA leave — the employee’s share of the premium must continue to be paid.
  4. Process state PFL applications — complete the employer portion of the application where required.
  5. Restore the employee to their position on return, on terms no less favourable than before.
  6. Track the 12-week FMLA period — the leave is capped at 12 weeks in a 12-month period, and exceeding the cap creates liability.

Common pitfalls

1. Not designating leave as FMLA

Failing to designate leave as FMLA creates confusion about the employee’s rights and the employer’s obligations. The designation must be made within a reasonable time of learning the leave is FMLA-qualifying.

2. Not maintaining health insurance

During FMLA leave, the employer must continue to provide group health insurance on the same terms as if the employee were working. Failing to do so is a breach of the FMLA.

3. Confusing state PFL with FMLA

State PFL provides wage replacement; FMLA provides job protection. They are separate programs that typically run concurrently. An employer who confuses the two may fail to meet its obligations under either.

4. Not tracking the 12-month period

FMLA leave is capped at 12 weeks in a 12-month period. The 12-month period is defined by the employer’s policy — it can be a calendar year, a rolling 12 months, or another fixed period. Failing to track this creates the risk of granting leave beyond the 12-week cap.

5. Retaliating against employees who take leave

Retaliation for taking FMLA leave is prohibited. This includes termination, demotion, or reduction in hours. Retaliation claims are among the most common FMLA lawsuits.

For more US context, see our guide to annual leave entitlements in the US, the overview of the main types of leave employers manage, and our guide to absence management.

Frequently asked questions

Is there a federal requirement for paid parental leave?

No. The FMLA provides unpaid leave. Paid leave is provided by state PFL programs or employer policies. Federal employees have access to 12 weeks of paid parental leave under the Federal Employee Paid Leave Act.

Can an employer deny FMLA leave?

An employer can deny FMLA leave if the employee does not meet the eligibility criteria (12 months of employment, 1,250 hours worked, 50+ employees within 75 miles). If the employee meets the criteria, the employer cannot deny the leave.

What happens to an employee’s job during FMLA leave?

The employee must be restored to their same or an equivalent position at the end of the leave. The employer cannot terminate the employee for taking FMLA leave.

Does FMLA apply to small employers?

No. FMLA applies to employers with 50 or more employees within a 75-mile radius. Employees at smaller employers are not covered by FMLA, though they may be covered by state PFL laws.

Can an employee use PTO during FMLA leave?

Yes. The employer may require or the employee may elect to substitute accrued PTO (vacation, sick leave, personal time) for unpaid FMLA leave. The PTO runs concurrently with FMLA.

Putting it into practice

Five steps cover most US parental leave administration:

  1. Set up an FMLA eligibility check in your HR system that automatically verifies the 12-month and 1,250-hour thresholds for each employee.
  2. Designate FMLA leave in writing within 5 business days of learning the leave is FMLA-qualifying.
  3. Maintain health insurance during FMLA leave and confirm the employee’s premium payments.
  4. Process state PFL applications for employees in states with paid family leave programs — check the current year’s rates and caps.
  5. Track the 12-week FMLA period and the employee’s return date to ensure compliance.
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Sources

Last updated: 26 July 2026. This article is general information, not legal advice.