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It’s your call: Intermittent FMLA leave following birth is up to the employer

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in FMLA Guidelines,Human Resources

Some new parents don’t want to come back to work full time after giving birth. They may prefer a part-time schedule, using intermittent FMLA leave.

But you don’t have to allow intermittent leave following birth unless the infant suffers from a serious health condition. If the baby is healthy, you can require employees to take their entire FMLA leave at once and return to full-time work.

Recent case: When tax attorney Ji became pregnant, her law firm allowed her to take time off for medical appointments, birth and recovery. After she returned to work, Ji found her regular 60- to 70-hour weeks interfered with her ability to breastfeed and care for her baby.

She requested intermittent FMLA leave and permission to work from home. Her request was denied. Shortly after, she was terminated during a reduction in force.

She sued, alleging interference with her FMLA rights.

But the court said she had no case. It noted that intermittent FMLA leave for new parents requires the employer’s consent. Otherwise, the employee can’t take intermittent leave. The only exception is when the child has a serious health condition. (Kim v. Goldberg, et al., No. 10-CIV-6301, SD NY, 2012)

Final note: Don’t forget that most employers are now required to provide breaks (and space) for nursing mothers to express milk. While this solution might not have been Ji’s preferred one, employers should offer it to new mothers who complain about their work schedules.

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