So one of our employment law lawyers was asked the other day by a mother of a new born whether she could spread out her leave under the Family Medical Leave Act (“FMLA”) after the birth of her baby by taking intermittent FMLA leave or a reduced leave schedule. (Intermittent FMLA leave is taken in separate blocks of time due to a single illness or injury and may include leave periods from a single hour to several weeks at a time. A FMLA reduced leave schedule reduces an employee’s usual number of working hours per workweek, or hours per workday.) Our new mother explained that after the birth of their first child, her mother could take the baby three days per week. Thus, if she could use intermittent FMLA leave or a reduced leave schedule to take only two days off per week, she could stretch her 12-week leave over a 30 week period. (The whole first year could then be covered if her husband then used his FLMA leave in a similar fashion).
While they may choose to do so, employers are not required under the FMLA to allow intermittent or reduced-schedule leave for the care of a healthy newborn. But if an employer does agree to intermittent or reduced-schedule leave after the birth of a child, the employee can be required to transfer temporarily to an alternative position that is more suitable to recurring periods of leave.
However, if leave is needed for the serious health condition of the mother or child, FMLA does require employers to allow intermittent or reduced-schedule leaves.
This is a typical question that our employment attorneys get from pregnant women about whether their husbands can take off work to share new baby duties (or doodies as the case may be). The law does not discriminate against daddies. While typically called maternity leave, the Family Medical Leave Act (“FMLA”) entitles eligible mothers and fathers of covered employers to up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for and bond with a newborn, a newly adopted child, or a newly placed foster child.
Critically, the FLMA does not require both parents to take their FMLA leave immediately following the pregnancy. The FMLA contains no language restricting when within the 12 months the leave must be taken. Therefore, should the parents of the new born so choose, one parent could take 12 weeks FMLA leave immediately following the stork delivering the baby, while the other parent waits 12 weeks or more to take his or her 12-week FMLA leave. For example, let’s say that Baby Joey is born on May 27 to Mommy Teacher and Daddy Factory Worker. After Mommy Teacher takes her 12 week FMLA leave, she is off for summer vacation. When Mommy Teacher need to start school again in the fall, Daddy Factory Worker is still within his 12-month period to be able to take time off under the FMLA. Indeed, either parent could wait to take FMLA leave until week 40 and still take the full 12-week FMLA leave. (But, remember to follow the employer’s time off request policy and ask for the time sufficiently in advance).
There is one caveat, if both new parents work for the same employer, they don’t each get a 12-week FMLA leave. In that case, the mother and father are entitled to 12 weeks jointly to be divided any way they choose between the two of them. In this case, the FMLA leave can overlap, but the total amount of FMLA leave to care for a healthy baby. Where both parents are employed by the same employer and they split the FMLA leave, both parents are eligible to take their remaining weeks of FMLA leave for another FMLA-qualifying purpose, including a serious health condition of the child. In this situation, the mother might seek FMLA leave to personally recover from the c-section or other birthing complications.
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