Employers are generally free to determine the benefits available to employees, including the amount of any such benefit. Essentially, as long as there is no law that prohibits the employer’s benefit design, the employer could choose to offer additional benefits to certain employees. And we are not aware of any law that requires an employer to treat all forms of leave or disability the same. So, an employer could likely offer greater maternity benefits than are offered for parental leave or other disabilities.
The usual concern when an employer wants to offer a greater benefit for maternity leave is the idea that it could be discrimination based on gender (since only women would be able to receive such a benefit), which would run afoul of Title VII of the Civil Rights Act. With that said, there are common practices that allow employers to achieve the goal of providing additional wage replacement benefits to employees who take maternity leave. Specifically, many employers choose to subsidize short-term disability payments or pay a portion over and above the STD payments for employees who give birth.
If that is the employer’s goal, it would likely be better to structure this type of program by paying additional paid leave to women who have given birth to a baby. This is because the EEOC actually allows employers to distinguish between leave related to any physical limitations imposed by pregnancy or childbirth and leave for purposes of bonding with a child and/or providing care for a child.
Specifically, leave benefits related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms (see the EEOC’s enforcement guide on pregnancy discrimination for more information). To the contrary, employers that simply offer baby bonding time should offer it equally to women and men (as underscored by the EEOC’s settlement with Estee Lauder).
So it’s possible for an employer to offer additional wage replacement or STD benefits to employees who give birth. We would just caution the employer to work with their legal counsel to ensure that their policy is compliant and to include the STD/wage replacement policy in the employee handbooks/communication to the employees, so that the policy is clear to everyone involved. The employer would also want to consider allowing all women employees who give birth the same level of benefits under the policy to avoid any arguments of disparate treatment or discrimination.