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The Family and Pregnancy Leave Quagmire
Editor's Note
The Family and Pregnancy Leave Quagmire
Interviewers love to ask, "what's the biggest issue in employment law?" If you ask me what the most important issue is, it's discrimination and fairness. But if you're asking what keeps both HR and lawyers up at night, what do we have to look up almost every time, and what is the topic most often when a client calls, it's leave.
Here's a quick list of questions I ask when I'm dealing with a leave issue:
What laws might apply?
This depends on what state the employee works in, how many employees the employer has, how long the employee has worked for the employer, and what the issue is. California has about 20 different types of leave an employee may be entitled to and that's before you get to FMLA, ADA, worker's compensation, or PTO.
How much leave is the employee entitled to under each law that applies?
This depends on time periods allowed by the laws, how the leave is accrued, the conditions to qualify for the leave, what the employee has requested, and how different laws work (or don't work) together. Then you look at whether the requested leave is for a continuous period of time or for intermittent times? Sometimes, the employer has to approve the leave before the employee can take it; sometimes they don't.
Is the leave paid, unpaid, or partially or completely paid by someone else?
FMLA and pregnancy leave are generally unpaid, but some states have benefits that provide some payment. Some employer benefits provide insurance that will pay during leave for illness or disability. And almost all leave laws permit an employee to use any vacation pay, sick leave, or PTO during otherwise unpaid leave.
You have to consider all these issues before you can even begin to calculate the leave itself. Pregnancy leave under California law is particularly tricky. And many state laws provide more benefits than federal law.
It's a quagmire. (Quag means a bog or a swamp.) And yes, we are all bogged down by leave questions.
This is a great example of trying to figure out how much bonding leave an employee can take, especially when it's at different times.
- Heather Bussing
Q&A: If an employee takes FMLA leave to bond with his new child, would he be able to take additional bonding time later the same year if he still had FMLA time available?
The Family Medical and Leave Act (FMLA) has some restrictions on when an employee can take leave for birth or bonding with a new child. First, leave to bond with a newborn child or for a newly placed adopted or foster child must conclude within 12 months after the birth or placement. Generally, both mothers and fathers have the same right to take FMLA leave to bond with a newborn child. However, intermittent FMLA leave to bond with the child throughout the 12-month period is subject to employer approval. “Intermittent leave” is leave taken in separate blocks of time due to a single qualifying reason.
Example: John uses FMLA leave to bond with a newborn baby for the first two weeks after birth. When his wife returns to work three months later, John can take another four weeks of FMLA bonding leave only with employer approval.
There are many factors an employer may want to consider when deciding whether to approve an employee’s intermittent FMLA request for bonding, such as other state leave law requirements or internal policies or practices. If, however, the newly born or newly placed child has a serious health condition, the employee has the right to take FMLA leave to care for the child intermittently without employer approval, so long as the leave is medically necessary and such leave is within any given 12-month limitation period. If the father and mother are married and work for the same employer, they are limited to a combined total of 12 workweeks of FMLA leave in a 12-month period for birth, placement, and bonding with a new child.
