Fathers' Rights and the FMLA

Under the Family and Medical Leave Act (FMLA), many new dads can take leave from work to care for a newborn, adopted, or injured child. Yet less than 22% do so. This may result from ignorance of fathers' rights under the FMLA.

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave when a child is born, adopted, or becomes ill or when a pregnancy or illness requires you to care for your spouse.

Although this leave is unpaid, employers must continue your employee health care coverage during this period.

This article discusses fathers' rights under the FMLA.

Eligibility Under the FMLA

More than half of American workers are covered by the FMLA, administered by the U.S. Department of Labor (DOL).

To be eligible for unpaid parental leave under the Act, you must:

  • Work for a covered employer. The FMLA applies to public agencies (including local, state, and federal employers), public schools, servicemembers, and private employers with more than 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 before leave.
  • Work in a location where the employer has 50 or more employees within a 75-mile radius.

When Can a Father Take FMLA Leave?

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave for certain qualifying reasons. These include:

  • Parental leave to care for an expanding family due to the birth of a child or the placement of an adopted or foster child with the family
  • Being a full-time caregiver for a spouse, child, or parent with a serious medical condition
  • A serious health condition that prevents the employee from working
  • Caring for family members who are military servicemembers and have a severe injury or illness. This leave program may extend for up to 26 weeks.

Does the FMLA Provide Equal Leave for Both the Mother and the Father?

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 off for the birth of a newborn or the placement of an adopted or foster care child.

If you both work in positions covered by the FMLA, you will both be entitled to leave for your expanding family.

New Mothers

New mothers are also entitled to maternity leave for pregnancy-related health reasons.

For example, a mother may take unpaid FLMA leave for the last four work weeks of her pregnancy and eight weeks after the child is born, after which the father may take his allotted FMLA leave to help raise the child.

Unpaid FMLA leave for a new child must be used within a year of the child's birth, adoption of a child, or placement of a new child in your home.

Care for a Spouse After Pregnancy or Childbirth

In addition to leave after a new child, a father may also take unpaid FMLA time to care for a spouse who is incapacitated due to pregnancy or childbirth.

However, if you aren't married to the child's mother, FMLA leave may not be available.

State Laws and Same-Sex Protection

Aside from leave benefits under federal law, several states also have state law leave policies 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 job-protected leave.

Returning to Work

When you exercise your fathers' rights under the FMLA, you should be restored to your original job when you return to work.

If you are not returned to the job you held before leaving, you must be placed in a new position that offers equivalent pay, benefits, and terms and conditions of employment.

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 you first to use paid leave, such as accrued vacation or sick days. Whether such paid leave counts toward your FMLA leave depends on your election or your employer's requirements.

For example, if your employer requires that you take two weeks of paid vacation first and permits you to take all 12 FMLA weeks afterward, you can have 14 weeks of combined paid and unpaid leave. However, if your employer requires you to take two weeks of paid vacation first but also requires you to take the 12 FMLA weeks concurrently, you would only be able to have a total of 12 weeks of combined paid and unpaid leave.

An employee may also take paid and unpaid FMLA leave time concurrently. An employee may take such action so that the entire leave, whether during the vacation leave or the FMLA leave, receives FMLA protections to hold his job.

Maternity/Paternity Leave

Imagine you become a new parent, either through childbirth or adoption. You decide to use your two weeks of paid vacation time and then take an additional ten weeks of unpaid FMLA leave for bonding with the new child. You elect that the total of 12 weeks be counted as FMLA time.

In this case, the first two weeks of FMLA leave would run concurrently with the paid vacation, resulting in 12 weeks of FMLA leave (two paid weeks + 10 unpaid weeks). As the entire period is FMLA time, your rights to your job remain protected.

Serious Health Condition

Similarly, imagine you are diagnosed with your own serious health condition requiring time off work for treatment and recovery. You opt to use your two weeks of paid vacation followed by ten weeks of unpaid FMLA leave.

The two weeks of paid vacation would count toward the FMLA leave, resulting in 12 weeks of FMLA leave (two paid weeks + 10 unpaid weeks). As the entire period is FMLA time, your rights to your job remain protected.

Caring for a Family Member

Now imagine your spouse, child, or parent has a serious health condition, and you need to take time off to provide care. You choose to use your two weeks of paid vacation first, followed by ten weeks of unpaid FMLA leave.

In this scenario, the two weeks of paid vacation would run concurrently with the FMLA leave, leading to 12 weeks of FMLA leave (two paid weeks + 10 unpaid weeks). As the entire period is FMLA time, your rights to your job remain protected.

FMLA Running Consecutively

There are also situations when paid leave and unpaid FMLA leave may run consecutively instead of concurrently. Here are a few examples.

Employer's Discretion

An employer may have its own paid parental leave policy or a policy that permits employees to use their paid leave and unpaid FMLA leave consecutively.

In this case, you could take your paid parental leave or vacation time first, followed by the full 12 weeks of FMLA leave, resulting in a longer total leave period.

This is at the employer's discretion.

Different Qualifying Reasons

If you use your paid leave for a different reason than the FMLA qualifying event, the leaves may not run concurrently.

For example, if you take two weeks of paid vacation for a planned holiday and then need to take FMLA leave for a health condition, the leaves could be considered consecutive.

State-Specific Leave Laws

Some states have their own family and medical leave laws that provide additional leave benefits.

In these cases, you may consecutively use paid and FMLA leave if the state law allows it.

For example, if the state law provides for an additional six weeks of parental leave beyond the 12 weeks of FMLA, and your employer permits running paid leave consecutive with unpaid FMLA time, you could take your two weeks of paid vacation followed by 12 weeks of FMLA leave and then the additional six weeks of state-family and medical leave.


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 and your spouse and child. An employer may violate the FMLA if it punishes you for taking family leave or denies your request for time off. Navigating how best to request FMLA time may depend on your employer's leave policies and provisions in your state's laws.

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

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Don't Forget About Estate Planning

If you are in the midst of a paternity case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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