Taking FMLA leave after 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   Generally, a new father can wait three months after the birth of a child to take FMLA leave to bond with a newborn. The right to take FMLA leave applies equally to male and female employees of covered employers. This means fathers are equally entitled to take up to 12 workweeks of FMLA leave for the birth or placement for adoption or foster care of a child, and to bond with the child within 12 months from the date of birth or placement. In addition, bonding leave must be taken as a continuous block of leave unless the employer agrees to allow intermittent leave. If state or local law allows or the employer permits bonding leave to be taken beyond this period, such leave will not qualify as FMLA leave.

There is an exception, however, that spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave to bond with a baby during any 12-month period. In the case of a newborn child with a serious health condition, spouses may each take 12 weeks of FMLA leave, even if both are employed by the same employer. Readers should review state and local laws and employer policy, as some offer even more expansive leave entitlements to new parents.

Katherine E. Stuart is an attorney in Genova Burns’ Newark, New Jersey, office. She can be reached at kstuart@genovaburns.com.