Birth for a Child

We have an employee who went on maternity leave 3 months after she was hired. Since she did not qualify for FMLA, she was only approved to be off work for 4 weeks. In May 2011, she should be eligible for FMLA and she wants to take FMLA leave for the birth of her child (which occurred in August 2010). We use a calendar year to track FMLA. Under this scenario, here are my questions:

1. Since it's still within 12 months since the birth of her child, is this FMLA?
2. Since we track by calendar year and her child was born in 2010 and calendar year ended in 2010, does that make her not eligible?

My initial response is that I'm reviewing her eligibility under 2011 calendar year and if she meets the eligibility conditions and she takes the leave within 12 months of the birth of her child, then her reason for leave is eligible.

Any guidance is appreciated.

Thank you!


  • 6 Comments sorted by Votes Date Added
  • Wow. That is confusing! Here are the things that stick out in my mind:

    1. I assume she is asking for leave for bonding with the child, not the actual birth of the child. That being said, I believe there are ample rulings out there that state FMLA for child bonding has to be taken directly after birth of the child, and can not be taken intermittently or at a later time. So if this request is for child bonding, I'd deny it.

    2. If the child was born in August 2010, and you said she started 3 months prior, I'm guessing her start date was in May or June 2010? If so, in order to qualify for FMLA she'd need to be an employee for (a) 12 months [B][I]and [/I][/B](b) work 1,250 hours in the preceeding 12 months. The 12 months of service do not have to be consecutive. I guess my question is how would she possibly be eligible for FMLA in May 2011 if she took 4 weeks of leave in August 2010?

    3. Regardless of when this employee becomes eligible, she is only eligible for leave events that occur after that date, meaning, she couldn't now take leave for something that happened several months earlier. As it pertains to a baby, she may be eligible for FMLA relating to a serious medical condition the baby may have, but that would need to go through the physician's certification process.

    I hope that helps - if I am totally misunderstanding the situation, please let me know (hey, it's been known to happen!).
  • Thanks so much for your reply. In reviewing the regs, it indicates that for the birth of a child, an employee may take leave up to 12 months after the birth of the child for bonding. So I'm thinking that once the employee becomes eligible in May, she would be able to take the time off.
  • You have a tricky situation. The way I understand it, the bonding leave doesn't have to be immediately after the birth. So, for instance, mom could take 12 weeks and then dad (working somewhere else) could take 12 weeks.

    Was any of the 4 weeks taken earlier for bonding, or was it all medical? I ask because you can't split bonding time up. However, now that I am thinking on it, the earlier leave was NOT fmla, so it wouldn't apply to now either.

    I think she qualifies if she has met the 1250 hours as Coffee suggests. Anyone else like to chime in?
  • I think you are generally on the right track. The regs allow employees to take bonding leave up to 12 months after the child is born (the fact that you use a calendar year method of tracking leave is not really relevant). Employers may require employees to take all their bonding leave on a non-intermittent basis. In other words, once an employee has taken FMLA leave for bonding purposes, you can require her to take all the leave she intends to take for that purpose in one continuous leave rather than spread it out over the 12 month period. However, if an employee takes no bonding leave immediately after the birth of the child, then he/she can take the full 12 weeks of FMLA leave for bonding later in the 12 month period (on a non-intermittent basis). This more frequently happens when the employee requesting the leave is the father.

    The question is whether the maternity leave this employee has already taken is essentially the same as intermittent FMLA leave. In my opinion, it is not, and you would be doing the right thing by allowing her to take the leave once she attains eligibility. That is a very general assessment based on the limited facts provided and not a legal opinion. :)

    With all that said, I think Coffee has raised a good question regarding the eligibility issue. According to the regulations, the four weeks of maternity leave probably ARE counted toward the 12-months requirement (see 29 C.F.R. 825.110(b)(3)), but are definitely NOT counted toward the 1,250 hour requirement (See 29 C.F.R. 825.110(c)). Just make sure you are counting it up correctly using those guidelines.

    Julie Athey
    Author - FMLA Compliance: Practical Solutions for HR
    Author - HR Q & A: Family and Medical Leave Act
    Editor - FMLA Compliance Bulletin
  • As an aside, I would serously re-think basing FMLA leave on a calandar basis. This concievably allows an employee to take 12 weeks of FMLA in the last quarter of the year (i.e. Oct 1st through Dec 31st), then turn around and be eligible for an additional 12 weeks starting January 1st, with the effect of taking 24 weeks off in a row (assuming they could get proper certification from a doc, which we all know is not difficult). Personal opinion only, go with the rolling 12 month calculation method instead.
  • I have to chime in here. If the 4 weeks granted to this employee were done presumably because she did not yet qualify for FMLA and it was granted to her then those 4 weeks cannot then be applied toward future FMLA. The employee had the child in August 2010, and FMLA does allow for bonding with the child up to 12 months following the birth. Since she will qualify for FMLA in May 2011, she technically can then request FMLA from the date she becomes eligible up to the 12 month mark from the date of birth to bond with her child and those 4 weeks given to her previously DO NOT count toward that future FMLA.
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