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Content Last Revised: 11/17/2008 |
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Code of Federal Regulations Pertaining to ESA |
| Labor |
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| Wage and Hour Division, Department of Labor |
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| The Family and Medical Leave Act of 1993 |
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| Coverage Under the Family and Medical Leave Act |
29 CFR 825.120 - Leave for pregnancy or birth.
- Section Number: 825.120
- Section Name: Leave for pregnancy or birth.
(a) General rules. Eligible employees are entitled to FMLA leave
for pregnancy or birth of a child as follows:
(1) Both the mother and father are entitled to FMLA leave for the
birth of their child.
(2) Both the mother and father are entitled to FMLA leave to be
with the healthy newborn child (i.e., bonding time) during the 12-month
period beginning on the date of birth. An employee's entitlement to
FMLA leave for a birth expires at the end of the 12-month period
beginning on the date of the birth. If state law allows, or the
employer permits, bonding leave to be taken beyond this period, such
leave will not qualify as FMLA leave. See Sec. 825.701 regarding non-
FMLA leave which may be available under applicable State laws. Under
this section, both the mother and father are entitled to FMLA leave
even if the newborn does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for birth of the employee's son or daughter or to care for the
child after birth, for placement of a son or daughter with the employee
for adoption or foster care or to care for the child after placement,
or to care for the employee's parent with a serious health condition.
This limitation on the total weeks of leave applies to leave taken for
the reasons specified as long as a husband and wife are employed by the
"same employer." It would apply, for example, even though the spouses
are employed at two different worksites of an employer located more
than 75 miles from each other, or by two different operating divisions
of the same company. On the other hand, if one spouse is ineligible for
FMLA leave, the other spouse would be entitled to a full 12 weeks of
FMLA leave. Where the husband and wife both use a portion of the total
12-week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newborn child, each could use an additional 6 weeks
due to his or her own serious health condition or to care for a child
with a serious health condition. Note, too, that many State pregnancy
disability laws specify a period of disability either before or after
the birth of a child; such periods would also be considered FMLA leave
for a serious health condition of the mother, and would not be subject
to the combined limit.
(4) The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that FMLA
leave begin before the actual date of birth of a child. An expectant
mother may take FMLA leave before the birth of the child for prenatal
care or if her condition makes her unable to work. The mother
is entitled to leave for incapacity due to pregnancy even though
she does not receive treatment from a health care provider
during the absence, and even if the absence does not last for
more than three consecutive calendar days. For example, a pregnant
employee may be unable to report to work because of severe
morning sickness.
(5) The husband is entitled to FMLA leave if needed to care for his
pregnant spouse who is incapacitated or if needed to care for her
during her prenatal care, or if needed to care for the spouse following
the birth of a child if the spouse has a serious health condition. See
Sec. 825.124.
(6) Both the mother and father are entitled to FMLA leave if needed
to care for a child with a serious health condition if the requirements
of Sec. Sec. 825.113 through 825.115 and 825.122(c) are met. Thus, a
husband and wife may each take 12 weeks of FMLA leave if needed to care
for their newborn child with a serious health condition, even if both
are employed by the same employer, provided they have not exhausted
their entitlements during the applicable 12-month FMLA leave period.
(b) Intermittent and reduced schedule leave. An eligible employee
may use intermittent or reduced schedule leave after the birth to be
with a healthy newborn child only if the employer agrees. For example,
an employer and employee may agree to a part-time work schedule after
the birth. If the employer agrees to permit intermittent or reduced
schedule leave for the birth of a child, the employer may require the
employee to transfer temporarily, during the period the intermittent or
reduced leave schedule is required, to an available alternative
position for which the employee is qualified and which better
accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
mother or newborn child. See Sec. Sec. 825.202 through 825.205 for
general rules governing the use of intermittent and reduced schedule
leave. See Sec. 825.121 for rules governing leave for adoption or
foster care. See Sec. 825.601 for special rules applicable to
instructional employees of schools.
[73 FR 68080, Nov. 17, 2008]
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