Post-childbirth FMLA leave: Taken in two parts?

Q. One of our employees recently immigrated to the United States. She is pregnant and told us she plans to take eight weeks’ FMLA leave immediately after the child is born. A few months later, she’d like to return to her home country to visit family for a month. In other words, she wants to split her FMLA leave into an eight-week period and a four-week period. Can FMLA leave for a new child be split up in this fashion? — T.N., Florida

A. The first question to ask is whether the employee, if she’s a “recent” immigrant, has worked long enough to qualify for FMLA coverage. The minimum is one year and 1,250 hours within the preceding 12 months.

Assuming she is eligible for FMLA, your question raises an issue relating to intermittent leave. DOL regulations do not require employers to grant intermittent leave for childbirth. Employers may, of course, choose to voluntarily permit the employee to split up her FMLA leave.

It’s also important to make sure the reason the parent is requesting intermittent leave is only due to the birth of her child. If the leave were required because either the mother or child had a serious health condition, the law would entitle the employee to take the leave in two or more parts.