Fathers' Rights and FMLA

Under the Family and Medical Leave Act (FMLA), many new fathers have the ability to take leave from work to care for a newborn, adopted, or injured child. Yet less than 22 percent do so, perhaps out of ignorance of their fathers' rights and the FMLA. The FMLA allows eligible employees to take 12 weeks of unpaid leave when a child is born, adopted or becomes ill, or when a pregnancy or illness requires a worker to care for his or her spouse. Although this leave is unpaid, employers are required to continue your employee health care coverage during this period.

This article discusses fathers' rights under the FMLA.

Eligibility Under the FMLA

Slightly over half of American workers are covered by the FMLA. To be eligible for leave under the Act, a worker must:

• Work for a covered employer. The FMLA applies to public agencies (including local, state, and federal employers), public schools, and private employers with over 50 employees.
• Have worked for the employer for 12 months. These months can be spread out over several years.
• Have worked 1,250 hours during the 12 months prior to leave. That's an average of 25 hours a week, with two weeks off, or a little under eight months of full-time, 40 hours a week work over the prior 12-month period.
• Work in a location where the employer has 50 or more employees within 75 miles.

When Can a Father Take FMLA Leave?

The FMLA allows eligible employees to take twelve weeks of unpaid leave for certain qualifying reasons. These include:

• An expanding family, due to the birth of a child or the placement of an adopted or foster child with the family
• To care for an employee's spouse, child, or parent with a serious health condition
• A serious health condition that prevents the employee from working
• To care for family servicemembers who have a serious injury or illness. This leave may extend for up to 26 weeks.

When a family is expecting a new child, the FMLA provides equal leave for both the mother and father. Both or either covered parent may take 12 weeks for the birth of a newborn or the placement of an adopted or foster child. If both parents work in positions covered by the FMLA, they will both be entitled to leave for an expanding family. Mothers may also take leave for pregnancy-related health reasons. For example, a mother may choose to take leave for the last four weeks of her pregnancy and for two months after the child is born, after which the father may take his allotted leave to help raise the child. Leave for a new child must be used within a year of the child's birth, adoption, or placement in your home.

In addition to leave after a new child, a father may also take time to care for a spouse who is incapacitated due to pregnancy or childbirth. However, if a father isn't married to the mother he may be unable to take leave to care for her. Several states also have laws providing for leave for the care of partners and children in domestic partnerships and civil unions. In 2015 the Department of Labor issued a rule that expanded spousal-care coverage to same-sex spouses, so all married couples are entitled to FMLA protections.

Exercising Your Right to Leave

If you wish to take unpaid leave under the FMLA, you must notify your employer as you would for any other request for leave. You must provide enough information for your employer to determine if the FMLA applies to your situation. If the leave is for medical reasons, an employer may ask you to provide a doctor's certification of your or a family member's condition.

Your employer may require that you first use paid leave, such as saved vacation days. Any paid leave you take beforehand will not count towards your FMLA leave. So if you're required to take two weeks of paid vacation you may also take 12 FMLA weeks, for a total of 14 weeks of leave. However, paid leave and unpaid leave under FMLA may run concurrently in some instances.

Returning to Work

When a worker exercises his father's rights under the FMLA, he must be restored to his original job when he returns to work. If you're not returned to the job you were in before leaving, your new position must offer equivalent pay, benefits, and terms and conditions of employment.

Get Help Understanding Fathers' Rights and FMLA

Time off from work to care for a spouse or child can be critically important to you as a new father, as well as to your spouse and child. An employer may be in violation of the FMLA if it has punished you for taking family leave or denied your request for time off.

Contact an experienced family law attorney to ensure your rights are defended.