FMLA and "spouse"

Sue2

We have a pregnant employee who is married. She and her spouse are separated and filing for divorce. The father of the baby is another employee. Under the FMLA regs (29 CFR 825.202) "spouses employed by the same company" refers to a "husband" and "wife". There is no reference to parents of the child. IF the two employees are not married at the time of birth can we limit the total number of workweeks of leave to 12 workweeks or are they each entitled to 12 workweeks?

Thanks for your help!

Lisa In Iowa

If I had your situation, I would allow both of the parents up to 12 weeks off for the birth of a child.

Under FMLA, employees can take up to 12 weeks off for the birth of a child. Provided that both of the employees have worked for your company for at least a year, worked the required 1,250 hours in the past year, and are both the parents of the child, they both could technically take the time off. Also, the leave would need to be taken within one year of the birth.

Hope that helps....

Lisa

Susan in La

I agree, if they are not married by the time the child is born, both would have a 12 week entitlement for the event. It depends on your state's legal definition of marriage. Are you a common-law state? If so and they meet whatever your legal requirements are for a common-law marriage, then you could make them share the 12 weeks. My state does not recognize common law marriage, so without a marriage license, we would have to grant 12 weeks to each.

morrisg

1. I disagree in part with these responses. While the FMLA does recognize common law marriage it does not recognize polygamy. If this man and woman are separated, they are not divorced and thus under the law would still be married. So, even if your state recognizes common law marriage, I would imagine that it does not recognize polygamy, as this would be if we say partner #2 is consider married under common law.

2. The FMLA has issued an opinion on your other question and those who have already replied are correct in that partner #2 in your example would be entitled to 12 weeks along with the female employee also entitle to 12 weeks. Their opinion letter says:

“The limitations also do not apply to employees who are not husband and wife. We would first determine whether this couple was "partners" or husband and wife. If so then in the aggregate they would be entitled to a total of 12 weeks, unmarried 12 weeks each."

There have been legislative attempts to correct this problem because it rewards unmarried couples more time off for care of a child than married couples. To my knowledge this has not been modified under the FMLA.

marc

I think this is an interesting question, and the responses so far have identified some of the particulars in the Act with respect to marriage, divorce, etc.

I believe you have identified an specific instance that the Act does not address. This question would be even more interesting if the husband was also your employee.

So, absent a specific provision, do we get to try and interpret the "intent" of the authors? I think the intent was to limit the exposure the company has to face for the birth of a child, to 12 weeks of leave. If that assumption is accurate, then I would say the company should indeed recognize that the biological father has the right to be involved in newborn care, but between the mother and father (married or not), the company is limited to the 12 weeks. I think the two parents could split these 12 weeks up between them, but that would be it.

Just my opinion, not supported by case law or any other written information.

morrisg

Marc,

In this case, the person who fathered the child would be entitled to 12 weeks and so would the mother since they are not married, even though they work for the same employer, therefore there is no splitting of the weeks. The husband (not the father) is also entitled to 12 weeks since he works for another employer.

The act does address it by its silence on the matter, and the DOL concurs. Since it does not address unmarried couples, the father of the child meets the FMLA criteria of being eligible for leave. Next question would be, how much time, since they are not married, and that would be 12 weeks.

The dynamics of this would change if the current father and mother got a legal divorce and the father of this child married this lady, or was recognized by common law. In that case, I would then say they would be entitled to the combined 12 weeks allowed under FMLA for husband and wife.

Isn't the federal government great in creating law that only adds additional value to HR folks?

marc

Morris, you may be right.

I still think there is merit to the thought that the Act only intends a 12 week burden on the ER for childbirth.

Wouldn't that be a twist? An employment law that actually worked once in a while in the favor of the ER, what a concept.

stilldazed

You're correct on the 'twist' part. That would be a very interesting twist, and the situation at hand more closely mirrors some of those 'real life' situations that leave employers struggling with what to do. You can bet that regardless of the employer's action, a challenge would find the employer liable for making a bad judgment call.

Irie

"The husband (not the father) is also entitled to 12 weeks since he works for another employer."

Why would the husband be eligible for FMLA if it isn't his child? If he isn't the father of the child would this fall under adoption/placement? I understand he could have FMLA for his wife's recovery but beyond that, for what reason?

morrisg

Irie,

Good question. In my view, the husband could be eligible on at least a couple of fronts i.e. that the wife could require the presence of her husband to "provide psychological comfort" as stated by FMLA. I'm not necessarily saying he is going to get that, but that he is eligible. She may also need him to care for her on an intermittent basis, assuming she is still his wife.

I am from the baby boomer generation and things were so much simpler then.

Sue2

I tend to agree with Marc on the intend of the law. However, I think we'd probably allow the 12 weeks each UNLESS the pregnant employee divorces AND marries the baby's dad (our other employee). I'll keep ya'll posted as the saga continues to unfold.

morrisg

Sue,

What you say is exactly correct according to the law as well as the DOL interpretive letter related to this very question. Your case was a great example for one of my HR Adminitrators to answer as part of her mentoring program. Please send my appreciation to the folks involved that gave us this case.

Thanks

Dutch2

Who says HR is dull? ya just never can tell what the next question will be...

At some point through this process, does the father of the baby, not the husband, have to prove that he is in fact the father, before he he would be given up to 12 weeks off?

marc

I wondered about that one also. His name on the birth certificate would do it for us.

morrisg

While that's a good question, I would suggest you go one step further. Remember this is not just about proving if this is this employee's baby but also that he would be required to take full time off. Don forget that the FMLA says:

"If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval."

So if your employee wants to take intermittent leave, to periodically care for the child, unless your policy goes beyond the FMLA requirements and allows him to take intermittent leave, you have a legal right to deny intermittent leave. It is "subject to your approval” You can also burn or charge vacation time to him while he is gone.

Rather than a birth certificate I would require him to complete and have the OB-GYN to sign the FMLA government approved form that this employee is 1) the father and 2) needs to be off more than intermittently.

I really do not mean to sound punitive if this employee is acting in good faith, but we have a union and many of our employees use FMLA to get around the attendance policy. You may view this as the father just doing what’s right and certainly you cannot fault anyone for that. However, if you do not allow intermittent leave under your policy and the law does not require it, you would be setting practice for future case that could be more tedious situations.

mbeam

[font size="1" color="#FF0000"]LAST EDITED ON 03-09-07 AT 10:08AM (CST)[/font][br][br]What do you do in the case of other associates in somewhat similiar situations? For example, if you have an unmarried father (with or without the mother working for your organization). I would do the same with the male employee in your situation - look for the same type of paperwork from him.

Agree with other posters on how much time to allow - if they're not married by the time she gives birth then would give each 12 weeks (assuming he has provided the necessary paperwork). If they are married then it's the 12 weeks to split between them.

davids

I have a concern with the note from the OB-GYN. You are recommending that the OB-GYN certify that the employee is the baby's father. The only way the doctor can do that is to run a paternity test. My concern is one of equal treatment. Are you requiring paternity tests of all fathers who take FMLA to be home with the children? I assume not; so why is this employee being treated differently? Also, I am not sure the OB-GYN needs to certify that the employee needs intermittent leave. FMLA leave for the birth and care of a newborn is not necessarily related to the child being ill. The concept is to allow bonding between parent and child. I think you just need to accept that the father wants the bonding time. If a physician's certificate is required, the pediatrician is probably the more appropriate doctor to issue the certification.

morrisg

Physician is the only one who can certify. I agree, it really does not matter which physician, as long as it's one who would have knowledge of the situation. Of course you would not require all fathers to take a paternity test, but this is not a typical father child situation. The employer has a right to expert some reasonable burden of proof. If that cannot be done then, I would take the fathers word. It would not be worth the time or effort for a law that is extremely pro employee.

The intermittent leave really does not apply unless your company policy provides more than FMLA requires, since intermittent leave is not required under the FMLA statute.

marc

[font size="1" color="#FF0000"]LAST EDITED ON 03-09-07 AT 10:48AM (CST)[/font][br][br]edit: Oops wrong thread.

morrisg

Go Marc! I feel a need to take some FMLA time as a result of the extreme stress this act has placed upon my sanity.

stilldazed

Best idea I've heard yet today. Let's all take the rest of the week off!

NaeNae55

In cases of married couples there is a presumption that the husband is also the father of any offspring. In this case, you just have 2 people who 'claim' that the male employee is the father. He probably is, and you do have 2 witnesses with no one claiming anything differently. But you certainly have a case for requiring proof before allowing 12 weeks off for TWO employees. After all the hub-bub with Anna Nicole Smith I believe anything is possible.

Good luck!

Nae

Irie

After all the discussion I just have to say this: "Who's your daddy?" (sorry...)

marc

With apologies to "Good Morning Vietnam!"

Irie - That is humor. I recognize that.

Excellent comment that would be a great topper to this thread if I hadn't blown it and posted again.