Q&A: FML for employees who give birth during the summer

Q: Is an employee who delivered or adopted a baby during the summer entitled to Family Medical Leave (FML) at the beginning of the new school year?

A:

If an employee meets all three of the FML eligibility tests, he or she is entitled to take up to 12 weeks of leave for the birth of a child no matter when the birth took place. The three eligibility tests are as follows:

1. The employee works for a district that has 50 or more employees in a 75-mile radius.
2. The employee has worked for the district for 12 months (the 12 months do not have to be consecutive.).
3. The employee has worked 1,250 hours in the 12 months immediately preceding the commencement of the need for leave.

The child’s mother can take leave not only for her own health condition (prenatal care, incapacity due to complications, and recovery from delivery), but also to spend time bonding with her healthy newborn child. Leave to bond with a child is only available to the child’s parents during the first 12 months after the birth, adoption, or placement of a foster child. Thus, an employee who delivers a baby during the summer may be fully recovered and released by her doctor to return to work by the time school starts and still be eligible for up to 12 weeks of leave under the Family and Medical Leave Act (FMLA).

Employees other than the mother may also be entitled to leave to bond with the new baby: for example, the child’s father (whether or not he is married to the child’s mother). And, as reinforced in a June 22, 2010, Department of Labor (DOL) Administrator’s Interpretation (2010-3)  , bonding leave time is available to the child’s step-father, step-mother, adoptive father and mother, foster parent, legal guardian, or anyone standing in the place of a parent (“in loco parentis”). There is no restriction on the number of parents a child may have.

The Administrator’s Interpretation concludes that “…either day-to-day care or financial support of a child may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent.” Therefore, an employee who will share equally in raising a child with a same-sex partner may qualify for leave to bond with the baby should the employee meet the definition of standing in the place of a parent. The “in loco parentis” relationship would apply to employee requests for leave to care for a child with a serious health condition as well.

Remember, all eligible employees are also entitled to leave to care for a spouse with a serious health condition. For the father of the child that means he would be eligible to take FML to care for his spouse during prenatal care, any incapacity due to the pregnancy, or a serious health condition during pregnancy or following the birth of the child.