Oh, baby: 5 thorny FMLA maternity/paternity leave situations and how to deal with them


We’ve been receiving many questions pertaining to leave related to a new baby, particularly intermittent leave (everyone’s favorite!). So, today, we will tackle five situations that have challenged employers when an employee’s is welcoming a new member of the family.

  1. Employee requests intermittent bonding leave 
    • Eligible employees are not automatically entitled to take FMLA leave on an intermittent or reduced schedule basis; they may do so only when you — as the employer — agree. Therefore, if you would rather the employee not take the bonding leave intermittently, you need not allow it. Employees should be aware of this, preferably before leave begins. Therefore, including such information in a policy can help.   
  2. Employee requests leave to care for his girlfriend who is pregnant 
    • Employees may take FMLA leave to care for a spouse, child, or parent. Girlfriends, fiancés, or civil union partners are not included. The spouse needs to be from a legal marriage. Therefore, the employee would not be entitled to take FMLA leave to care for a girlfriend.   
  3. Employee is having twins and wants 12 weeks off for each child 
    • The employee is entitled to a total of only 12 weeks of FMLA leave in a 12-month leave year period, no matter how many reasons — including multiple births — are involved. Therefore, you would not provide 24 weeks of FMLA leave to an employee because she is having twins. State laws, however, may provide more leave.   
  4. Employee won’t provide a certification for bonding 
    • You may not request a certification if leave is only for bonding with a healthy child. Since no one has a serious health condition, a doctor would have no information regarding such a condition. Therefore, the solution is to not request a certification for bonding. You may request documentation or statement of the family relationship.   
  5. Employee won’t meet the 12-months eligibility for FMLA until after leave begins 
    • An employee may be on non-FMLA leave when he or she meets the 12-month eligibility criterion. In such cases, only after the employee crosses the 12-month threshold, the FMLA leave begins, and you begin counting it toward the employee’s 12 weeks of FMLA leave. This can result in an employee having more than 12 weeks off, with only 12 of the weeks being counted as FMLA leave.  

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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