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Is intermittent leave for childbirth OK? Only if you agree

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in Employment Law,FMLA Guidelines,Human Resources

Here’s an uncommon FMLA question: Can a new father or mother return to work part time, taking intermittent FMLA leave? The surprising answer is no—unless the employer OKs it.

The FMLA specifically says that leave for a birth or to care for a new child “shall not be taken by an employee on an intermittent or on a reduced leave schedule unless the employee and the employer agree otherwise.”

There are distinct disadvantages to allowing new parents to take intermittent leave. For example, if a new mom takes 20 hours per week off to be home with her baby, she essentially will get away with working part time for half a year. You’ll have to hire a temp to make up the difference or pass the work on to others—plus continue paying full price on health insurance for a half-time employee.

Consider adding a specific section to your employee handbook, specifying exactly when employees can take intermittent FMLA leave. Explain that once an employee returns from full-time FMLA leave following a birth, he or she can’t take more time related to that birth unless the child becomes ill. If that happens, a parent can take FMLA leave for the child’s serious health condition.

Recent case:
Jeffrey Beyst asked for two days off after his wife gave birth. He missed Monday and Tuesday and returned on Wednesday. Later, he argued that he should have been allowed to take more time off after the birth. Eventually, Beyst lost his job because of frequent unscheduled absences, some of which, he argued, should have been covered by the FMLA.

Beyst sued, alleging that his former employer had deprived him of FMLA leave following the birth of his child a few months earlier. But his employer pointed out that it had a “no intermittent leave for childbirth policy.” By returning to work, he effectively ended his paternity FMLA leave.

The court agreed. The FMLA specifically states that employers don’t have to provide intermittent childbirth or adoption leave, but they can insist that employees take any leave they want in a single block. And the employer never agreed to intermittent leave. (Beyst v. Pinnacle Airlines, No. 07-10927, ED MI, 2008)

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