Help! It's the birth of a child
September 22, 2006
Excerpted from
South Carolina Employment Law Letter, written by attorneys at the law firm
McNair Law Firm, P.A. Q: An employee who qualifies for
Family and Medical Leave Act (FMLA) leave has requested intermittent leave to help his wife care for their newborn child. Is he entitled to take intermittent leave?
A: In general, the FMLA can be confusing, and there are often questions on how to comply with the statutory schemes and regulations. When confronted with an FMLA question, you should start the analysis at the beginning. Under the Act, an eligible employee is limited to a total of 12 workweeks of leave during any 12-month period. The leave can be taken for one or more of the following reasons:
- the birth of an employee's child and caring for the newborn;
- the placement of a child with an employee for adoption or foster care and caring for the child;
- to care for an employee's spouse, son, daughter, or parent with a serious health condition; and
- an employee's own serious health condition that makes him unable to perform one or more of the essential functions of his job.
Thus, it's clear that an employee is entitled to up to 12 weeks of FMLA leave for the birth of a child. In regard to the birth of a child, however, there are several additional points you should consider.
First, an employee's entitlement to leave for a birth or adoption or foster care placement expires at the end of the 12-month period beginning on the date of the birth or placement unless state law allows or the employer permits leave to be taken for a longer period.
Second, a husband and wife who are eligible for FMLA leave and employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period for the birth of their child or the placement of a child with them. In that situation, the employees are entitled only to a combined total of 12 weeks as opposed to each being entitled to 12 separate weeks of FMLA leave.
Third, while FMLA leave generally may be taken intermittently or on a reduced-leave schedule, there's an exception for the birth of a child, adoption, or foster care. Intermittent leave is taken in separate blocks of time because of a single qualifying reason.
A reduced-leave schedule reduces an employee's usual number of working hours each workweek or workday. A reduced-leave schedule changes the employee's schedule for a period of time, normally from full-time to part-time. When leave is taken after a child's birth, adoption, or foster care placement, an employee may take leave intermittently or on a reduced-leave schedule only if the employer agrees.
That exception doesn't apply if the mother has a serious health condition in connection with the child's birth or if the newborn has a serious health condition. In those instances, the employer's agreement isn't necessary.
While an eligible employee is entitled to FMLA leave for the birth of a child, there are certain limitations placed on his request for leave. Specifically, he isn't automatically entitled to intermittent leave or a reduced-leave schedule.
In your situation, he is entitled to such leave only if you agree. You should consider the fact that he is entitled to take FMLA leave for the birth of a child and weigh the pros and cons to determine whether it's in your best interest to grant intermittent leave or a reduced-leave schedule.
Depending on the circumstances, it may be more harmful to you if he takes the FMLA leave in a block of time, which he is entitled to do, as opposed to agreeing to intermittent leave or a reduced-leave schedule.
Because each situation is different, a blanket policy may not be applicable. You should be careful not to discriminate, however, and be able to articulate a nondiscriminatory reason for granting intermittent leave or a reduced-leave schedule to certain employees while denying it to others. As always, if there's any doubt, you should consult with your employment counsel.
Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from
SOUTH CAROLINA EMPLOYMENT LAW LETTER. SOUTH CAROLINA EMPLOYMENT LAW LETTER is not intended to provide legal advice, which can be given only after consideration of the facts of a specific situation.
But it's funny!!!!!!!!!!!!!!
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