Employers aren’t required to offer intermittent FMLA leave for birth, adoptions

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If an employee is taking FMLA leave to care for a newborn or to adopt a child, you can require the person to take any planned FMLA leave in one session. FMLA intermittent leave is not guaranteed for birth and adoption the way it is for other serious conditions that require periodic care.

That makes sense. If new parents could take FMLA child-rearing leave intermittently, they could essentially create a part-time job for half a year.

The regulations do say that if both the employer and employee agree, the leave can be taken intermittently. The employer, though, has the final say.

Recent case: When pharmaceutical salesman James Dotson was preparing to adopt a child from Russia, he made two trips overseas. HR told him to take the time, though no one used the words “intermittent leave.”

Soon after, he was fired. He filed an FMLA interference and retaliation lawsuit. The company tried to argue that Dotson couldn’t sue because FMLA regulations say employers can make adoptive parents take all FMLA leave in a single block.

The verdict: Dotson won, collecting an award of more than $1 million.

The court said that those same regulations say employers can choose to allow employees to take adoption leave on an intermittent basis. Since the company never said Dotson couldn’t have intermittent leave, he was covered by the FMLA. (Dotson v. Pfizer, No. 07-1920, 4th Cir., 2009)

The lesson: Be sure your handbook includes information on how to take adoption and childbirth/child-rearing leave. If you don’t want employees to take the leave intermittently, say so.

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