Granting Parental Leave Under the FMLA

The FMLA gives employees the right to take time off to bond with a new child.

Employees have the right to take parenting leave (also called “bonding” leave) under the federal Family and Medical Leave Act (FMLA). Male and female employees alike are eligible for this type of leave. Leave is available to new parents of a biological child, adopted child, or foster child.

Who Counts as a Parent?

Only parents can take parental leave under the FMLA, but the law defines “parent” broadly. Parents include biological, adoptive, or foster parents, whether married or not. The Department of Labor has also said that anyone who stands “in loco parentis” (in the place of a parent) also qualifies for FMLA leave. This includes anyone who assumes or intends to assume the status of parent toward a child by taking on parental duties. No blood relationship or legal relationship (for example, by adoption or foster care) between parent and child is required. And, there is no limit on the number of parents a child may have for purposes of the FMLA. In other words, even if both of the child’s biological or legal parents are part of the child’s life, someone else could qualify as a parent of that same child, under the FMLA. Grandparents, siblings, stepparents, and unmarried partners might qualify as parents, as long as they take on parental duties on a regular basis.

When Is Leave Allowed?

An employee is entitled to parenting leave after the birth of a biological child. Adoptive and foster parents are also entitled to parenting leave after the child arrives. In addition, these parents may take FMLA leave prior to placement of a child if need to:

  • attend adoption or foster proceedings
  • attend counseling sessions
  • meet with attorneys
  • meet with doctors
  • attend court hearings, or
  • attend to other placement matters.

Employees must complete their FMLA parenting leave within a year after the child’s birth or placement. And, employees are not legally entitled to take their parental leave intermittently or on a reduced schedule (for example, by coming back to work part-time for a while). Your company may agree to provide this type of leave, but it isn’t legally required to do so.

Parents Who Work for the Same Company

If both of the child’s parents work for your company, the total amount of parenting time they may take depends on their marital status. If the parents are married, they are entitled only to a combine 12 weeks of parenting leave. However, if the parents are not married to each other, they each get 12 weeks or parenting leave.

This rule can get complicated because it applies only to FMLA leave for parenting and caring for a sick parent, not to other types of FMLA leave. For example, if an employee took off the last four weeks of her pregnancy due to medical complications, those weeks would count as leave for a serious health condition. The employee would have eight weeks of FMLA leave left to use. If she took all eight weeks as parenting leave after the child was born, her husband who works for the same employer would be entitled to only four weeks of parenting leave. However, the husband would still have eight weeks of FMLA leave remaining to be used on his own serious health condition or the serious health condition of his wife or child.

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