The Family & Medical Leave Act has been around for over 20 years, yet there is still confusion surrounding the “family” part of Family & Medical Leave.
Family, by definition under the regulations, includes child, spouse, parent (including those acting in loco parentis), or in the case of caring for an injured military servicemember, next of kin. The confusion surrounds the use of time off to be with or “bond” with a newborn child or the newly placed child for adoption or foster care. This is what sometimes is referred to as “baby bonding” time.
Pregnancy or Birth
FMLA is available to both the mother and father for the pregnancy and birth of a child. However, not all of the 12 weeks to which these individuals are entitled are necessarily for a serious health condition. Yes, the mother who is pregnant and gives birth is regarded as having a serious health condition. Typically, the birth and recovery from childbirth is 6-8 weeks depending on whether or not there complications. For the period of time the mother is recovering from the serious health condition of being pregnant and giving birth, the company would want to request a Certification of Health Care Provider.
Although “Mom” may be recovered from giving birth, it’s not unusual for her to take the entire 12 weeks of leave. Once the portion of the leave for her to recover from her own serious health condition ends, she is then eligible to take additional time to bond with her child. She may choose to take this time immediately after her serious health condition ends OR she may take that bonding time at any point during the 12 month period after the child is born. There is no certification required for her to take the additional time to bond with her child; however, she is expected to let the company know that she is doing so.
Similarly, the father may take time off to care for his spouse who is recovering from the serious health condition of having given birth. Again, the company would ask him to submit a completed Certification of Health Care Provider form to them. Just as the mother can take time off for her own serious health condition, the father also can take time off to care for his spouse with a serious health condition. Additionally, he too has the right to take the “bonding” time off sometime within the first 12 months after birth.
Adoption or Foster Care
Parents who adopt or foster children are permitted to take up to 12 weeks of leave to bond with that child(ren). There is no certification form that the employee would be required to provide to the employer. However, an employer could reasonably expect the employee to provide some type of documentation from the court or by adding the child on the group health insurance.
Intermittent Leave & “Baby Bonding”
While employers are required to grant medical leaves of absence intermittently, they are not obligated to do so for the time that is requested to bond with the newborn or newly placed child. It is up to the employer to agree to that request or not.
There is an exception to this rule and that is when the adoption or fostering process requires the employee to be absent from work. For example, before a child is placed, the parents may be required to attend counseling sessions, appear in court, meet with their attorney, etc. In those circumstances, the company would be required to allow the time to be taken intermittently.
Children with Serious Health Conditions
If a parent is needed to care for a child with a serious health condition, that is considered medical leave that can be taken intermittently. Again, a completed Certification of Health Care Provider would be required from the employee to confirm the need for leave. This would be considered medical leave to care for a seriously ill child.
Let’s take some examples of how this may work.
Scenario 1: Female employee gives birth and takes leave for her own serious health condition that lasts 6 weeks (birth and recovery). She still has 6 weeks of FMLA leave available. 6 months after she’s returned to work, she requests additional time off because she wants to spend time with her baby. At that point, she’s eligible for bonding time; however, it does not have to be offered intermittently, meaning that any time she takes for bonding is all that she gets. If she only takes 2 weeks, she is not permitted to come back at a later date to take the final 4 weeks of FMLA as bonding time. However, she is permitted to take those 4 weeks to care for her baby who has a serious health condition, her spouse or parent who has a serious health condition or her own serious health condition. In rare circumstances, she may even adopt a child during that time and she would be entitled to take those remaining 4 weeks to bond with that adopted child.
Scenario 2: Male employee takes time off for the birth of his child. He takes 2 weeks off immediately after the child is born. Is this bonding time or time off to care for the serious health condition of his spouse who just gave birth? If he’s smart, he’ll say it’s to care for his wife. That will leave him 10 FMLA weeks to use during the rest of the year. He may choose to take time off later in the year to bond with his newborn child or he may need it to care for his child, spouse, or parent with a serious health condition.
Scenario 3: Your employee is in the process of adopting a child and this requires court appearances, meetings with attorneys, and counseling sessions. These appointments count toward his 12 week FMLA entitlement. Even though the time is taken intermittently, they are all related to the placement of a child in the home.
Sometimes FMLA can be complicated. However, when dealing with newborn or newly placed children in the home, just think of “baby bonding” time as the family portion of FMLA as opposed to the medical portion which is to care for the child, spouse, parent or one’s own self that has a serious health condition.
The Department of Labor publishes an Employers Guide to FMLA which is comprehensive and helps employers administer this cumbersome law.
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