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Maternity, paternity leave and ‘sensitive situation’ bring up FMLA questions

The Family and Medical Leave Act (FMLA) can be a headache for HR since the law applies to so many situations. Recently, questions regarding the timing of maternity and paternity leave as well as the need for FMLA paperwork for an employee’s “sensitive situation” were put to a group of attorneys well-versed in employment law. Here are their answers.

Timing of maternity, paternity leave
What if an employer has a new dad whose baby was born in September, but he doesn’t want to take leave until the following April? Does the employer have to allow the delayed leave? Under the FMLA, eligible mothers and fathers of covered employers are entitled to up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for and bond with a newborn, a newly adopted child, or a newly placed foster child.

“There is no language restricting when within the 12 months the leave must occur,” according to Peyton Irby, with the Jones Walker law firm in Jackson, Mississippi. “Even though this is an oddly timed request, the answer is yes.”

Reggie Gay, with the McNair Law Firm in Anderson, South Carolina, agrees but explains that if both parents work for the same employer, they don’t each get 12 weeks. Instead, the mother and father are entitled to 12 weeks jointly.

“The parents can divide the leave any way they wish between the two of them, and it can overlap, but the total amount of FMLA leave to care for a healthy newborn when both parents are employed by the same organization is a combined 12 weeks,” Gay says. In such a case, both parents are eligible to take their remaining weeks of FMLA leave for another FMLA-qualifying purpose, including a serious health condition of the child.

Gay also reminds employers that they aren’t required to allow intermittent or reduced-schedule leave for the care of a healthy newborn. But if an employer agrees to such leave after the birth of a child, the employee can be required to transfer temporarily to an alternative position that is more suitable to recurring periods of leave. If intermittent leave is needed for the serious health condition of the mother or child, though, the employer’s consent isn’t required.

Paperwork or no paperwork?
Turning to a different FMLA question, the attorneys were asked what to do about a well-respected long-term employee who is away from work because of a “sensitive situation” in her family. She has more than 12 weeks of leave available, so there’s no question she can take the time off, but the employer wants to know if it’s necessary to give her paperwork for her family member’s doctor to complete. The employer asks, “If everyone in the company knows what happened, can I just skip calling it FMLA leave or automatically assign it as FMLA leave without the paperwork?”

Michael G. Petrie, with Jorden Burt LLP in Simsbury, Connecticut, reminds employers in such a situation that it’s important to treat employees consistently. “Even though you want to be sensitive to this particular employee, it’s important that you follow your standard procedure,” he says.

“If you skirt your policies in this situation, there may be a time when another employee feels he deserves a leave of absence without having to go through the normal procedures, and perhaps that situation won’t be so clear-cut,” Petrie says. “You don’t want to establish a precedent for making exceptions to your FMLA policies.”

Rachel E. Burke, with the Porter Wright law firm in Cincinnati, Ohio, says that the U.S. Department of Labor says its “Certification of Health Care Provider” form is optional and employers who know or reasonably believe an employee’s time off qualifies as FMLA leave can designate the time off FMLA leave without using the form. “However, most employers choose to be consistent in their FMLA administration practices to avoid any argument that an employee may have been treated more or less favorably than a coworker,” she says.

Burke points out that if the employer chooses not to designate the time off as FMLA leave, “the employee remains entitled to the protections of the Act while not exhausting any of the 12 weeks of leave available to her.”

Burke also reminds employers that “you cannot avoid FMLA protection merely by not designating the time off as FMLA leave.”

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