Why? Leave for Pregnancy or Birth . . . . Part 1.

OK we are all done with serious health conditions . . . yea . . . for now.  So why else can you take an FMLA leave?   Let’s look.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

We talked extensively about what a serious health condition is, so let’s look at a couple of other reasons why an eligible employer can take a leave.  And today, we will start with “(1) For birth of a son or daughter, and to care for the newborn child.”  We don’t really have to define “birth of a son or daughter” do we?  So let’s just get into the specifics of when we have to give that leave.   First, you have to give an employee time off to actually have the baby, Duh!

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

(1) Both parents are entitled to FMLA leave for the birth of their child.

29 CFR §825.120(a).  That makes sense right?  But remember it is not just mom who gets the time off when the baby is born, it is dad too.  And also remember that provision of the regulations says both “parents” get time off for the birth, not “spouses.”

Both parents are also entitled to time off after the birth to bond with an otherwise healthy baby. That time has to be taken within 12 months of the birthday of the newborn and it can be taken even if the baby does not have a serious health condition.  One of the things you need to remember is that some states (most notably California) allow for additional bonding time with occasionally different eligibility rules.  If that is true, any leave that is taken under these state laws that does not qualify for FMLA leave can’t be counted as FMLA leave.  Specifically, the regulation states:

(2) Both parents are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee’s entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of the birth. If state law allows, or the employer permits, bonding leave to be taken beyond this period, such leave will not qualify as FMLA leave. See §825.701 regarding non-FMLA leave which may be available under applicable State laws. Under this section, both parents are entitled to FMLA leave even if the newborn does not have a serious health condition.

29 CFR §825.120(a)(2).

OK, that all makes sense.  Parents get time off for the actual birth of the child and then they get additional time off for bonding with the child after the child is born and even if the child is not suffering from a serious health condition.  How much time?  A total of 12 weeks right?  Right, but what if both spouses work for the same employer.  Not all that rare is it?  Well, there is a regulation for that too.

(3) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee’s parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a healthy, newborn child, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. Note, too, that many state pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the birth mother, and would not be subject to the combined limit.

29 CFR §825.120(a)(3).

That’s right, when we are talking about the birth of a child and bonding time with a healthy baby, if both spouses work for the same employer you can limit them to a total of 12 weeks of leave.  Now remember this limit only applies to time off for birth and care of a heath baby.  If the baby has a serious health condition both spouses can take a full 12 weeks to care for the baby and the other combinations are way too complicated to get into here.  The thing to remember is the 12 week limit can be different for each different set of circumstances.  Next time we will talk about some of those situations.