The Family and Medical Leave Act (FMLA) allows eligible employees to use their 12 weeks of FMLA leave for the care and bonding of a newborn, adopted, or foster child for up to one year after birth or placement. There does not need to be a serious health condition or medical necessity for the absence, therefore childcare during this time would be an allowable reason to take FMLA leave. However, intermittent leave is only available for the care of a healthy new child if the employer agrees to allow the leave. The following examples assume that the employee is eligible for FMLA leave and has not yet exhausted his or her FMLA leave entitlement:

Scenario 1:

An employee’s daycare provider closes due to holidays or illness, and the employee has no back-up plan. The employee takes time off from work sporadically to care for the child who is less than one year old and, when disciplined according to the company’s attendance policy, the employee claims protection under the FMLA.

Because the leave is intermittent, not taken consecutively, the employee would not be covered under FMLA unless the employer agreed to allow the intermittent leave and applied this practice consistently. The employee could be disciplined according to a clear and consistent attendance policy.

Scenario 2:

An employee’s daycare provider closes permanently with no notice and the employee has no back-up plan. Although the employee took 8 weeks off when the child was born 4 months ago, she now takes three weeks off to care for her child who is less than one year old due to difficulty in finding an available replacement provider.

Since the employee’s FMLA was not taken all at once, this is now an intermittent leave situation and the employer does not have to allow this under FMLA

A second request for leave to care for a newborn child who does not have a serious health condition within the first year would be considered intermittent leave since all of the leave was not taken consecutively and would require the employer’s agreement to allow this additional leave. However, if the newborn child has a serious health condition, an eligible employee would have the right to take intermittent leave.

 
Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. Contact the Knowledge Center for more information.
 

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