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Family Leave: Caring for a New Baby -- For Moms and Dads, Births and Adoptions
From the National Partnership for Women & Children's Guide to the Family & Medical Leave Act: Questions and Answers
Family & Medical Leave Act: The Basics

1. When can I take family or medical leave?

  • If you are having or adopting a baby;
  • If your child, spouse, or parent has a serious health condition; or
  • If you have a serious health condition, including pregnancy.

The FMLA allows you to take time off ("leave") without losing your job.

Definitions: This Guide uses the term "family leave" to mean time off to care for another person in your family - a newborn or newly-adopted child, or a child, spouse, or parent with a serious health condition. "Medical leave" is used to mean time off to seek medical treatment for or to recover from your own serious health condition.

2. How much leave can I get?

FMLA allows you to take either family leave, or medical leave, or both, for up to a total of 12 weeks per year. This means that if you are on family or medical leave and not out for more than 12 weeks in a year, your job is protected.

3. How do I know if I can take family or medical leave?

Not everyone is covered. There are generally three conditions:

First, your employer must have 50 or more employees on the payroll for 20 work weeks during the current or preceding calendar year.

  • To determine whether your employer is covered, find out how many employees are on the payroll, including those on leave and working part-time.

Second, your employer must have at least 50 employees within a 75-mile radius of your worksite.

Third, you must have worked for your employer for at least 12 months and for at least 1,250 hours during the last year.

  • If you worked 25 or more hours for 50 weeks in a year, you would have worked the required total of 1,250 hours. (Certain special rules also apply to teachers and highly paid "key" employees.

4. Will I get paid while I'm on family or medical leave?

The FMLA does not require your employer to pay you during leave. But if you have any accrued paid annual leave and, in some circumstances, accrued paid sick leave, the FMLA gives you the right to use that during your family or medical leave.

In addition, if male employees get paid while they are on leave because of serious health conditions like heart attacks, female employees on leave because of pregnancy- or childbirth-related disabilities must get paid too, under the Pregnancy Discrimination Act. Under most short term disability policies, women are entitled to six weeks paid disability for vaginal deliveries and eight weeks for c-sections.

5. What if I need more than 12 weeks off?

Under the FMLA, job protection is limited to absences of up to 12 weeks in a calendar year.

Again, if your employer gives male employees longer leave for serious health conditions, female employees may not be limited to 12 weeks for pregnancy- or childbirth-related health conditions, under the Pregnancy Discrimination Act. You may also have additional protections from state law or your employment contract.

6. What information about FMLA is my employer required to give me?

All employers with 50 or more employees are required to post a notice about FMLA where employees can see it. Copies of the notice are available from the Labor Department's Wage and Hour Division.

If your employer fails to post the notice, you cannot be penalized if you don't give your employer advance notice that you will be needing leave. Also, the Labor Department can fine your employer if its failure to post the notice was intentional.

In addition, when you request family or medical leave, your employer is required to give you information about medical certification and other requirements that will apply to your specific leave.

7. I just found out I'm pregnant! How much maternity leave do I get?

Your job will be protected for up to 12 weeks (in any 12-month period) if you are on leave either for the medical needs of pregnancy, childbirth, and recovery OR to care for your new baby - the two components of "maternity leave."

Definitions: Under FMLA, traditional "maternity leave" consists of two different kinds of leave:

First, the "medical leave" part of "maternity leave," which lasts for the period of time during which you are physically unable to work due to pregnancy, childbirth, recovery, and related medical conditions; and

Second, the "family leave" part of "maternity leave," which is the time you take off not because you need to, physically, but because you want to be home with your new baby.

The FMLA guarantees you 12 weeks for these two kinds of leave combined. Some states and individual employers provide additional leave.

8. I'm having a very difficult pregnancy, and my doctor says I may need to take off time BEFORE my baby is born. Can I do that without losing my job?

Yes. FMLA covers any pregnancy-related leave that is medically necessary. And you can take it when it is necessary medically, intermittently, in chunks of time, or all at once. If you have to be out of work due to morning sickness for two weeks in the early part of your pregnancy, your job (or an equivalent one) will be protected, and you can also take time later in the pregnancy if you need to.

At that time, you will have the remainder of the 12-week FMLA period for childbirth and recovery, and to stay home with your new baby. All this leave is unpaid, unless you have accumulated sick leave or vacation time you can use (or your employer has disability insurance or another paid-leave program that covers some or all of your time off).

9. My baby is due in early January, and my company holds a big conference that I'm responsible for at the end of May. Assuming I need six weeks to recuperate from childbirth medically, can I take six weeks off in January and February, come back to work through the conference, and then take the remaining six weeks in June and early July?

Yes, if your employer agrees. Also, you have to take the non-medically necessary part of the leave within one year of the child's birth. (The U.S. Department of Labor interprets this limitation as meaning that you must complete the leave within that year.)

10. After I've recovered from childbirth, I'd like to work part-time. Can my family leave be taken by reducing my work-week to a part-time schedule?

Only if you and your employer agree may you take your family leave by working part-time. If you stayed home full-time for six weeks, you might be able to take the remaining six weeks of leave by working half-time for 12 weeks - going back to work full-time when your baby is 18 weeks old.

11. We are adopting a child. Do I get leave, and is it paid or unpaid?

Like biological parents, adoptive and foster parents may take up to 12 weeks of leave to care for a child when she or he comes into your home as part of an adoption. (This also applies to a child you recently assumed parental responsibilities for, such as a foster child.)

Adoptive parents do not have the right under FMLA to use any paid sick leave they have accrued to cover part of their unpaid leave when they have a newborn. They can, however, use their accrued paid annual leave for that purpose.

Important note: Under the law, the right to take family leave when a child is adopted occurs when the child is "placed" with you. You do not have to wait for the adoption to be finalized--often months or even years after you first get the baby--to take leave.

Adoptive and foster parents have the right to use accrued paid annual leave but not accrued sick leave to cover their unpaid family leave following the child's placement.

12. We need to take time off from work to complete the home study and other legal requirements before our child's adoption is final. Does the FMLA protect our jobs?

Yes. As long as you have not used up your annual 12 weeks, your employer must give you unpaid leave for an absence from work that is required for the adoption to proceed.

13. My husband wants to take leave when the baby comes, too. Can he?

Yes, and you can each take up to 12 weeks. You can both take leave at the same time; you can overlap your leaves; or you can take them consecutively (as long as each parent's leave occurs within one year of the child's birth or placement for adoption).

Exception: If you and your husband both work for the same employer, your employer may limit your combined parental leave to 12 weeks during a 12-month period.

Guide to the Family and Medical Leave Act
from the National Partnership for Women & Familes

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