FMLA and birth--Intermittant leave?

Christine M

An employee who had used up his paid leave allotment for the year used one week of FMLA after the birth of his baby. No problem here--

Two weeks later, he missed a day when he cared for the child when his wife was ill. A week later he missed another day to care for the new baby.

My understanding of FMLA is that Intermittant FMLA is solely for instances of a serious medical condition. The wife's illness does not qualify as a serious medical condition, so he cannot claim, nor has he asked for FMLA on the basis that he was needed to care for her.

This employee has an attendance problem, and is very near the final stages of corrective action. I believe that that the absences described above are not covered by FMLA, but I am looking for confirmation.

Thank you for your help.

Susan Fentin MA

Christine, I am prohibited from giving specific legal advice for your situation by ethical considerations, but I can say that intermittent leave after the birth or adoption of a child is only permissible when agreed to by the employer. Under the regulations, the employer is not required to give intermittent leave except in circumstances of a serious health condition, either that of the employee or one of the qualifying relationships. You should be careful to be sure that the wife's physical condition is not a "serious health condition," requiring him to be present to care for her. You could address the situation with him to make him aware of the risk that he faces from continued absences that he might believe are covered under FMLA, and if he has expresses a need for intermittent leave, you should ask him for medical certification for his need to take this leave and verify that her physician does not believe he needs to be home to care for her. Remember that the threshold for serious health condition is not very high and only requires a limited number of days of illness or repeated health care services. I suggest you speak with your labor and employment counsel before deciding whether or not to terminate this employee based on such absences. If we can be of some assistance, please contact me directly.
Susan Fentin, Esq.
Associate Editor
Massachusetts Employment Law Letter
Skoler, Abbott & Presser, P.C.
[email]sfentin@skoler-abbott.com[/email]
(413) 737-4753

Christine M

Thank you, Susan. I will speak to employee myself to determine the need and possible eligibility for FMLA.