A new father may not be treated differently when taking leave for the birth of a child

Q         Does a new father have to start Family and Medical Leave Act (FMLA) leave the day his child is born, or can he wait three months until after the mother returns to work and then take his leave?

A   Under the FMLA, eligible employees are entitled to up to 12 weeks of leave for the birth of a child. To be eligible for FMLA leave, the employee must have worked at least 1,250 hours for a covered employer during the 12 months before the start of FMLA leave (and work in a location where the employer has 50 or more employees within 75 miles). The FMLA provides equal leave for both the mother and father. Spouses who are eligible for FMLA leave and are employed by the same covered employer, however, may be limited to a combined total of 12 weeks of leave for the birth of a child.

A father can use FMLA leave for the birth of a child and to care for a spouse who is incapacitated (due to pregnancy or childbirth). Depending on the reason, the leave may begin before the child is born (to care for a spouse) or after the child is born. Under the FMLA, an employee's entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of the birth. So, a father wanting to take 12 weeks of leave would need to start leave on or before the child reaching 9 months of age.