Paternal intermittent leave request

WO

Something unusual has come up that I need to brainstorm with y'all about.

Our FMLA policy allows for intermittent leave on a medically necessary basis only. Our policy also requires that FMLA is designated for eligible absences.

The issue: our employee, an expecting father, asks to take a week off now at birth and the remainder 3 months later when his wife returns to work. Obviously this is not medically necessary.

We have sick leave and he is entitled to use sick leave in WA State for serious health condition for his wife. Which also then meets FMLA and must be designated as FMLA.

So if he takes the sick leave at the birth and during her disability period I must require that he take all his FMLA leave at that time not wait 3 months, correct?

Any other ideas?

SMace

You sound on the right track to me. You may deny intermittent requests for child bonding. If you've stuck to your policy, he will need to take all his time when the child is born. I guess if he did not take any time off at the birth, he could take the time 3 months later and it would not be considered intermiitent. Right? If I were you I would talk to my attorney if I was going to do anything other than what your policy states.

Down_the_Middle

You're correct that intermittent leave for child birth is discretionary for the husband. You might try using the reduced leave option to assist him. There's frequently a silent trap with sort of thing--------you're reluctant to approve FMLA, but encourage him to take time off as vacation. SNAP.....the trap's got ya. You'll risk being accused of denying FMLA for discriminatory reasons.

HRinFL

I'm not sure, but I think that caring for a newborn allows the parent time off under FMLA for up to the first year. Would you deny the request for a female ee? I would check to make sure that you have not allowed any ee intermittent leave for the birth of a child before you deny the request. Additionally, I think that you would have to show a hardship to deny the request. FMLA does give the ee the opportunity to take intermittent leave. This is trickier than the more run of the mill request for intermittent leave because I think he is really asking for two leaves, the first for a week, the second for the remainder of his twelve weeks. While not medically necessary, FMLA clearly defines caring for a newborn (either by birth or adoption), as a qualifying reason.

I would definitely say that the time off is unpaid, assuming that your policy addressing sick leave is for the ee's own illness. I don't know that the restrictions you have in place can be enforced for FMLA. It seems the nature of the statute was designed to afford ees the time off for qualifying reasons, and that your company is trying to dictate when it is acceptable for ees to receive that benefit. I would be careful with the way your policy sounds. What about the ee whose mother has cancer and needs the ee to take her to chemotherapy treatments. That could be a reason for intermittent leave and according to your policy, that is not acceptable. Being a caregiver for an immediate family member is also a qualifying reason. I think you are treading in dangerous water. I would not want to have a policy that is more restrictive than the actual statute.

James, wasn't there a case in NY a few years ago involving a police officer or fireman that was very similar to this?

WO

You are correct that time off to care/bond with a newborn is eligible for the first 12 months. And the statute also allows that only medically necessary leave be intermittent.

So I am leaning toward requiring that he take his FMLA for birth of child all at one time.

Down_the_Middle

The issue about this leave being discretionary (at employer's option) is if it's taken AFTER the birth or placement. The employer must approve this and I'm not aware of any time frames other than it must occur within 12 mos of birth. Try the option of off a few days/weeks, return a few more and then off again..... Might soften the absence while avoiding the ee relations prob's.

jmcaa

[font size="1" color="#FF0000"]LAST EDITED ON 01-11-05 AT 03:23PM (CST)[/font][br][br]You can take FMLA for caring/bonding with a newborn within the first year. Intermittent Leave means a day here, an hour or two there, a change in your regular working hours, etc. What your employee is asking is for two SEPARATE leaves. He is not asking for Intermittent Leave.

Let's say he asks for FMLA for the birth of the child for only 1 week which is granted. He returns to work after the 1 week off. Two months later he asks for the remaining 11 weeks off. This would have to be granted also.

I really don't see why this would be a problem.

This would NOT be Intermittent Leave.

SMace

I disagree jmcaa. This is wording taken from an opinion letter from the Wage and Hour Division regarding the definition of intermittent leave. It says:

The FMLA's implementing regulations at 29 CFR Part 825.203 and 825.800, copy enclosed, define intermittent leave as "leave taken in separate blocks of time due to a single qualifying reason." This definition is based upon the statutory provisions and legislative history pertaining to intermittent leave.


According to that info his request IS intermittent.

WO

JMCAA,

Help me out. Why wouldn't this be intermittent leave?

I really dont have a problem with it only in the policy compliance arena.

We do not allow intermittent leave for new mothers who would like to prolong their leave for non-medical reasons.

Thanks for your time.

Don D

You being in Washington, I would like to congratulate and thank you for properly spelling y'all.

WO

Don, I spent several months in the Carolinas and quickly grew to appreciate the term vs. my northwest term "you guys".

System

I did the same thing as this guy when my kiddo was born and the company had no problem with it - maybe because we have PTO and are real flexible with leave.

If I were this guy, I'd find another way to take that first week - like vacation w/o FMLA. Or FMLA to care for his wife, who's recovering from childbirth, especially if C-section. Three months later, he can take FMLA to bond with his new kid.

James Sokolowski
HRhero.com

jmcaa

I think that is an excellent idea. Maybe our company is not so hard-nosed, I can't see the problem with him taking the two leaves.

Unless there is some problem with production, etc. I'd let the guy have two separate FMLAs.

Parental bonding is an allowable event and can be taken within the 1st year of birth. If the employee was wanting to take an hour here or an hour there just at whim, I can see where it would cause problems, but taking "whole" weeks just doesn't seem to be a problem to me. I don't believe anywhere in the regs it states you have to take the full 12 weeks off for parental bonding or you lose it. If it does, someone please point it out to me.

WO

Sorry for my delay in responding; I have been out with the nasty flu.

Thank you all for your responses. Specifically SMACE for the cite defining intermittent leave. After discussion with the employee he has elected to take his leave immediately after the birth.