OAJ Blogs


Posted on: Jul 7, 2020

Yes, you can use FMLA leave to take maternity leave for the birth of a child or the adoption/foster care placement of a child.  You are entitled to up to 12 weeks of FMLA leave if you are an “eligible employee.”  “Eligible employee” refers to your eligibility under the FMLA and your employer must employ 50 employees within a 75-mile radius in order for you to qualify for FMLA.  If you have worked for your employer of this size for 1 year or have worked 1,250 hours, you should be eligible for FMLA leave.

Your employer cannot force you to use all your available unpaid leave under the Family and Medical Leave Act at one time. If you choose to take FMLA intermittently, your employer must allow you to do so.

Your employer may not meet its legal obligations regarding granting FMLA leave.  If that occurs, you should contact a Columbus FMLA lawyer to discuss your particular situation.

Here is what you need to know about intermittent FMLA maternity leave.

PREGNANCY, CHILDBIRTH, AND ADOPTION ARE COVERED BY THE FMLA

As listed on the U.S. Department of Labor’s FMLA website, employees who have worked for the equivalent of one year or have worked 1,250 hours are entitled to request and use up to 12 weeks of unpaid FMLA leave for one of the following reasons:

  • The birth of a child and to care for the newborn child within one year of birth;
  • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • To care for the employee’s spouse, child, or parent who has a serious health condition;
  • A serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.

Male and female caregivers—mothers and fathers—can take FMLA leave to deal with pregnancy complications, to care for a newborn, or to welcome a foster child or adopted son or daughter into their home.

A total of 12 weeks are available for each year after an employee becomes eligible to use FMLA leave. Generally, unused FMLA leave does not roll over. Both the employer and the employee have an obligation to keep track of how much unpaid FMLA leave has been used and how much remains available.

FMLA MUST BE REQUESTED AND APPROVED

It helps to notify your employer well in advance of your need to take FMLA maternity leave. When an unexpected health problem or premature birth makes scheduling maternity leave impossible, you should contact your employer as soon as is practical to inform it of the medical issue and request paperwork to apply for FMLA leave.

Your employer is allowed to ask for a doctor’s note or other form of documentation to substantiate the need for FMLA leave. These forms are often referred to as “FMLA certification forms.”  There are very few reasons to deny FMLA leave so if you can prove you fall within one of the categories listed above, your application for FMLA leave should be approved.

UNDERSTAND YOUR RIGHT TO TAKE FMLA LEAVE INTERMITTENTLY

The Department of Labor makes it clear that eligible employees can take unpaid FMLA maternity leave intermittently. This means that a pregnant woman or new parent can use their available FMLA leave by the day, a few days at a time, or a few weeks at a time.  They do not have to use all 12 weeks continuously.

An employer is legally permitted to set rules regarding the smallest increments of leave employees can take, but those rules must apply to all forms of sick leave or uncategorized paid time off. That is, if paid sick leave must be taken 8 hours at a time, then that rule must also apply to intermittent FMLA leave. When leave rules are applied unequally depending on the type of leave being used, an employee may have grounds to file an FMLA discrimination or interference lawsuit.

Additionally, an employer cannot demand that an employee take FMLA maternity leave in specified increments. Just as they cannot require an expectant or new parent to use all of his or her available FMLA leave consecutively, an employer cannot demand that an employee take three or six or nine weeks.  You are free to use those 12 weeks as you wish.

Lastly, an employer cannot require an employee to use FMLA maternity leave instead of other available types of paid leave. Employer can force employees to use FMLA leave and paid leave, like vacation time or sick time, concurrently.  This means you can be required to exhaust your 12 weeks of FMLA leave AND your 12 weeks of vacation or sick time, at the same time.  

FMLA leave is typically unpaid but employers can choose to pay employees while on FMLA leave.  It is not mandatory to do so however.

YOU SHOULD NEVER SUFFER RETALIATION FOR REQUESTING OR USING FMLA MATERNITY LEAVE

Employers are required to keep workers employed during the time the person is out on FMLA leave, absent unusual circumstances. An employer must also make good faith efforts to restore a returning employee to the same job they left at the same pay, seniority, and responsibilities. When fully reinstating a returning employee is not practical, an equivalent position should be found.

This does not mean that an employee cannot be fired while on FMLA leave, however.  An employee can still be fired for a policy violation uncovered while on leave or due to a layoff, for example.  The burden is on the employee to prove that he or she was terminated, at least in part, because of FMLA usage.

Similarly, employers cannot allow managers to fire, demote, harass, or otherwise penalize employees for requesting and using FMLA leave. Retaliation is one of the the most frequent complaints in employment law cases, and FMLA retaliation is one of the most common ways that employers violate employees’ rights.

Shared by The Friedmann Firm
www.thefriedmannfirm.com/blog

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