New Parents in the Workplace: Family and Medical Leave Act

One of the challenges many business owners commonly face is what to do when one of their employees has a baby. Amid the congratulations, baby gifts, and maybe a bonus check comes a lurking question: what will this mean for the business? How much time is allowed off? Must it be taken all at once, or can it be taken piecemeal to better maintain the workflow?

Under the Family and Medical Leave Act (“FMLA”), a new mother or father is allowed to take up to twelve weeks of unpaid leave per year for the birth of a child.[1] The FMLA applies to employers who have at least 50 employees working within a 75-mile radius, as well as certain public or federal agencies. For a new parent to qualify for leave under the FMLA, he or she needs to have worked for this employer for the previous twelve months and logged 1,250 hours worked over that period of time (which is an average of 24 hours worked per week). Employee benefits, such as healthcare, must continue while on FMLA leave.

Importantly, the FMLA allows an employee to “take leave intermittently” with the permission of their employer.[2] Employees are entitled to twelve weeks’ worth of work off, based on the number of hours per week that they normally work. So, for example, if an employee works 20 hours a week, the employee is entitled to a total of 240 hours (20 hours x 12 weeks) of unpaid leave. Conversely, someone whose workweek is 48 hours gets 576 hours of unpaid leave (48 hours x 12 weeks). For salaried employees, an employer may make deductions for hours taken as intermittent or reduced FMA leave, dividing the total salary by number of hours worked per year to arrive at an hourly rate.[3]

These hours may be divided up into the smallest fractions and allocated across a twelve-month period however they and their employer agree, as long as their total hours are accounted for in the end. There are a few different ways to calculate the 12-month period: it can be based on the calendar year, the company’s fiscal year, or the employee’s starting date, among other options.[4]

When a new parent returns from FMLA leave, they must be restored to the same job that they held when the leave began or to an “equivalent job”[5]—a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). If a replacement employee is hired to cover in the interim, it should be made clear to such an employee that this is temporary employment, and further employment once the new parent returns is not guaranteed.

These are the federal regulations; however, states often have their own mini-versions of the FMLA or ADA. As such, it is prudent to check your state’s employment laws as part of your assessment or contact one of our experienced employment attorneys.

The information contained herein is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from Shumaker Williams P.C. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. This blog is current as of the date of original publication.

[1]  A 2018 survey of the FMLA found that 24% of women require leave compared to 17% of men. Interestingly enough, almost an equal percentage of women and men take leave for a new child.

[2] See 29 CFR 825.202(c)

[3] See 29 CFR 825.206(a) and (b): “The hourly rate shall be determined by dividing the employee’s weekly salary by the employee’s normal or average schedule of hours worked during weeks in which FMLA leave is not being taken.”

[4] For a full fact sheet, see https://www.dol.gov/agencies/whd/fact-sheets/28h-fmla-12-month-period.

[5] See 29 CFR 825.215