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New York - Intermittent FMLA - Childbirth or Placement

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  • New York - Intermittent FMLA - Childbirth or Placement

    Good Morning,

    We allow FMLA for childbirth/baby bonding only on a continuous basis, but what about placement for adoption or foster care? I don't believe this has come up yet, but I would think that placement would involve non-continuous appointments and/or hearings.

    Can we disallow intermittent FMLA for childbirth but allow it for placement for adoption or foster care?

  • #2
    I think you are on very risky ground in having an across-the-board policy that you will not allow it for childbirth/baby bonding, to be honest.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Agree, every case is different and you may be providing fuel for a potential fire.
      May we ask what is the reasoning behind this?

      Comment


      • #4
        Employees may take FMLA leave intermittently or on a reduced leave schedule (that is, in blocks of time less than the full amount of the entitlement) when medically necessary or when the leave is due to a qualifying exigency. Taking intermittent leave for the placement for adoption or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth of a child is also subject to the employer's approval. However, employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered servicemember. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.

        The above is my reasoning. It is from cfr 825 elaws.

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        • #5
          I agree that the employer has a certain amount of control over approving or disapproving intermittant FMLA for baby bonding time. But I do not believe that an across the board disapproval is within the regs. It could be determined that by disapproving all intermittant requests, you are in effect depriving the employee of protected time. I would feel a lot better about this if you were looking at such requests on a case by case basis and making your decisions based on the individual situations.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

          Comment


          • #6
            Okay. I hadn't questioned this before, because it looked straight-forward to me. I can't actually remember a case where that has happened. Do you think it would be okay to say something like "FMLA leave for the purpose of baby bonding generally should be taken in a continuous block of time, rather than intermittently."?

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            • #7
              Perfect example: intermittent leave for baby-bonding for a father who was the lone IT guy in the company. It was in our interest to keep him working so the technology was up & running, and it was in his interest to get at least partial paychecks but have time off with his baby. So we allowed an intermittent schedule of 3 days a week for about 2 months, and everybody was happy.

              I agree, looking at a case-by-case basis is the best way to go, rather than disapproving all requests. I think it would be difficult for a mother to get intermittent time off after childbirth, though, since most doctors would give a RTW date no sooner than 6 weeks. But a father could request intermittent leave for baby-bonding, for very practical reasons.

              Hope that helps.

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              • #8
                Intermittent leave for the purposes of bonding are at the sole descretion of the employer. If the employee is using intermittent leave for an adoption or foster care placement preparation, you must allow it. Purely bonding time is still up to the employer.

                That said, it is unwise to be totally inflexible on that as there may be times when it is in the best interest of both parties to take intermittent leave. You are also on thin ice if you allow it for fathers but not at all for mothers. Again, we are talking about leave for bonding purposes and not to recover from giving birth or attend to pregnancy related medical conditions.
                I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                • #9
                  Good advice from all of you.

                  Thank you very much!

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