For qualifying employers, the FMLA (Family and Medical Leave Act) provides for 12 work weeks of unpaid leave for eligible employees within a 12 month period in the following situations:[1]
- the birth of a child and to care for the newborn child within one year of birth;
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job.
29 U.S.C. §2612(a).
The FMLA provides that for pregnancy and the birth of a child, both the mother and the father are entitled to FMLA leave for the birth of the child and for bonding time during the 12 month period following the child’s birth. The mother is additionally entitled to leave for incapacity due to pregnancy, childbirth or her own serious health condition. 29 C.F.R. §825.120. For adoptions or foster care placement, FMLA is similarly available for the 12 months following the placement of the child. Leave may also be taken prior to the adoption if absence from work is required in order for the placement to proceed. 29 C.F.R. §825.121. Additionally, “The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption, or foster care of a child.” 29 C.F.R. §825.112.
For a serious health condition, an employee may take up to 12 weeks of leave in a 12 month period for his own “illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider” that renders the employee unable to perform the functions of the job. 29 C.F.R. §825.113. Leave may also be taken to care for the employee’s spouse, son, daughter, or parent with a serious health condition. 29 C.F.R. §825.112.
In terms of substitution of paid leave for the unpaid leave provided for in the FMLA, the FLMA regulations provide that (1) an eligible employee may choose to substitute accrued paid leave for unpaid FMLA leave; OR (2) the employer may require the employee to substitute paid leave for unpaid FMLA leave. The FMLA leave would then run concurrently with the paid leave. 29 C.F.R. §825.207. An employer’s ability to substitute paid leave time is determined by the employer’s normal sick leave policies: “For example, an employer is not obligated to allow an employee to substitute paid sick leave for unpaid FMLA leave in order to care for a child with a serious health condition if the employer’s normal sick leave rules allow such leave only for the employee’s illness.”
FMLA regulations provide that an employer may adopt more generous leave policies than those required by the statute, provided that the employer actually follows the policies: “An employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA . . . . If an employer provides greater unpaid family leave rights than are afforded by FMLA, the employer is not required to extend additional rights afforded by FMLA, such as maintenance of health benefits (other than through COBRA), to the additional leave period not covered by FMLA.” 29 C.F.R. §825.700.
For more information, contact Devine Law Offices at 717-390-3020.
[1] The statute also provides for 12 or 26 weeks of leave for issues involving military service members, but such coverage is outside the scope of this memorandum.
