Why? Leave for Pregnancy or Birth . . . . Part 2.

OK, so last time we talked about leave for birth and care of a healthy baby with a healthy mother.  Now let’s talk about some of those other circumstances.  What if mom is incapacitated either before or after the birth?  Of course she gets leave for that:

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

That makes sense, but why do we need this additional regulations, why isn’t that just covered by the definition of a serious health condition?  Because some of the requirements for a serious health condition don’t apply when the mother is incapacitated due to pregnancy.  For example. The mother does not necessarily need to see a doctor for every incident of incapacity nor does she need to be out for 3 consecutive days.  So when a women is pregnant, she gets a bit more slack cut for FMLA leave and a bit more freedom to take that leave without jumping through hoops go get it approved.

Now a spouse gets time off to take care of a pregnant spouse too:

(5) A spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for her following the birth of a child if she has a serious health condition. See §825.124.

29 CFR §825.120(a)(5).

And both parents get time off to take care of a newborn that has a serious health condition:

(6) Both parents are entitled to FMLA leave if needed to care for a child with a serious health condition if the requirements of §§825.113 through 825.115 and 825.122(d) are met. Thus, spouses may each take 12 weeks of FMLA leave if needed to care for their newborn child with a serious health condition, even if both are employed by the same employer, provided they have not exhausted their entitlements during the applicable 12-month FMLA leave period.

29 CFR §825.120(a)(6).

So what kind of leave we have when a child is born is important because it determines not only the amount of leave that can be taken by parents who work for the same employer like we discussed last time, but it also determines if the leave can be taken intermittently or on a reduced schedule.

(b) Intermittent and reduced schedule leave. An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees. For example, an employer and employee may agree to a part-time work schedule after the birth. If the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, Federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave. The employer’s agreement is not required for intermittent leave required by the serious health condition of the expectant mother or newborn child. See §§825.202—825.205 for general rules governing the use of intermittent and reduced schedule leave. . . .

29 CFR §825.120(b).

What all that says is leave for a healthy newborn can only be taken intermittently or on a reduced schedule if the employer agrees to let the employee it take it that way.  If the leave is for a serious health condition for the mother, taken either by the mother or by a spouse to care for the mother, or for a serious health condition for the newborn, on the other hand, the employee gets to take the leave intermittently or on a reduced schedule if it is medically necessary even if the employer objects.