FMLA has special rules for unmarried parents, and also for married parents working for the same employers. Today’s Advisor clarifies the sometimes tricky rules, rules that in one case actually favor unmarried parents.
Married or Unmarried
The FMLA regulations are very clear that male employees are entitled to FMLA caregiving leave only when their wives are pregnant—not their girlfriends. The same rule applies to a homosexual employee whose partner is pregnant—there’s no obligation to provide caregiving leave.
However, male employees who aren’t married to their child’s mother and female employees who have a pregnant life partner are entitled to leave for the following reasons:
- For the birth of their child, whether they are married to the mother or not
- To care for and bond with the healthy newborn child, or
- To care for the child if it suffers from a serious health condition
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When Both Parents Work for You
The FMLA statute and regulations have special provisions that apply when married parents work for the same employer. Assuming that the newborn or adopted child does not suffer from a serious health condition and neither employee is also using military caregiver leave, they may take no more than 12 weeks of leave between them to care for their new child.
The employees can split those 12 weeks in whatever way they like. They may take all their leave at the same time or take turns.
The same rules apply regarding intermittent leave after the birth of adoption of a child and the one-year limit on leave.
This rule applies whenever a married couple works for the same employer, which means that they may work at two different work sites or for two different operating divisions of the same company.
Note that, as a practical matter, there is nothing to prevent the mother from asking her doctor to certify that she needs 6 weeks to recover from childbirth plus another 6 weeks to care for the baby. In that situation, she would be able to take the full 12 weeks of leave after giving birth because only six of them are ‘to care for the child.” But the father would still be limited to a total of six weeks of leave for the purpose of caring for the child (and/or a sick parent.)
Unmarried Parents
The requirement that a married couple share their 12 weeks of leave after the birth of adoption of a child does not apply to an unmarried couple (including same-sex couples) who work for the same employer when they have a child together. In that situation, the employees are not required to split their leave regardless of their reasons for taking it.
This results in the anomalous rule that unmarried parents who work for the same employer are entitled to more leave than those who are married.
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The FMLA actually says that married employees who work for the same employer are entitled to a combined total of 12 weeks of leave to care for a new child and for leave to care for a sick parent. But if either employee needs FMLA leave for any other reason—for example, if the husband need leave for his own serious health condition—they are entitled to take it as long as that employee’s total leave for the year does not exceed 12 weeks.
In addition, if one spouse were ineligible for FMLA leave, the other would be entitled to the full 12 weeks of FMLA to care for the child.
In tomorrow’s Advisor, FMLA rules regarding adoption and fostering, plus an introduction to the manual many call the “FMLA Bible.”
Ugh–the permutations under FMLA/CFRA, not to mention ADA/FEHA, are such a pain. And trying to explain them to employees is no small matter. Try explaining to the married couple employees why they get less leave than the unmarried couple employees.
Marriage doesn’t mean much as it is to people, now there an incentive not to marry or to get a divorce…you get more benefits.
Your article entitled “FMLA Special Rules Favor Unmarried Parents” appearing 02/20/12 written by Steve Bruce is very confusing.
In the first paragraph it states that a male with a girlfriend who is pregnant is not entitled to FMLA but in the next paragraph it it stated that a male who is not married to his childs mother IS entitled to FMLA. Isn’t that the same as a girlfriend?
There must be something here that I do not understand or see because after reading this article I don’t know how the unmarried male fits in to all this.
for the one who is confused about male’s girlfriend:
Your article entitled “FMLA Special Rules Favor Unmarried Parents” appearing 02/20/12 written by Steve Bruce is very confusing.
In the first paragraph it states that a male with a girlfriend who is pregnant is not entitled to FMLA but in the next paragraph it it stated that a male who is not married to his childs mother IS entitled to FMLA. Isn’t that the same as a girlfriend?
There must be something here that I do not understand or see because after reading this article I don’t know how the unmarried male fits in to all this.
Answer: if the girlfriend is not carrying the male’s child then the male would not be entitled. that is probably why they worded it as “male who is not married to his child’s mother is entitled”
Edward, I see the confusion. What the author means is an unmarried man is not entitled for FMLA while the mother of the child is pregnant. (For married men, they would be covered under FMLA to take care of a pregnant wife if she is having issues during the pregnancy). As soon as the baby is born, however, the unmarried man would be eligible for FMLA for baby bonding. Hope that clears it up.
In reply to Edward Hull’s question, the way I understand it is that FMLA is granted to the parent/partner once the child is born; if the child hasn’t been born yet, there exists no family relationship to the mother-to-be, so they wouldn’t have FMLA protection to provide for her care.
I thought it was quite clear. The unmarried male is not entitled to FMLA caregiving leave for the girlfriend, but he is entitled to take FMLA bonding leave to be with the baby.
My parents are divorse. Dad is retired. Dad is fighting for his life, he has the LOU GERIGH’ S DISEASE. Mom still works. Can she get FMLA through her work ?
We have a married couple that both work for the same company. He became ill and took 12 weeks of FMLA. She took 12 weeks to care for him. Anything wrong with this?
If the unmarried father is applying for FMLA for bonding does he still have to have a Certification completed by a Health Care provider? and if so is it the girlfriend’s doctor who fills it out?
So my boyfriend and I aren’t married we have 2 children 3rd on way. So therefore he’s not entitled to any extra time off basically once baby is released he returns to work? I’m having baby on a wednesday and he’d pretty much have to return that monday? I have c section and won’t even have my staples out by then. Does fmla cover him at all for Apts and such that I’m not able to drive to??
boyfriend girlfriend realtionship, live together for the past 25 years, girlfriend has pancreatic cancer, what relationship do I put for FMLA
I cannot tell if you are in California, so my answer will be a hybrid one. Qualifying employees may take FMLA leave to care for serious health conditions involving themselves or their immediate family (spouse, children, parents). The same goes for CFRA (if you’re in California). Boyfriends and girlfriends do not qualify. However, you have to take into account registered domestic partnerships in California, if these two have one. Not anyone can obtain one though; the qualifications are listed here: http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=2.5.&title=&part=1.&chapter=&article=
If they meet the guidelines but are not yet registered, they can register here: http://www.sos.ca.gov/registries/domestic-partners-registry/
Here is some more info on registered domestic partnerships:
http://corporate.findlaw.com/human-resources/the-domestic-partner-rights-and-responsibilities-act-presents.html
****Other than that, he is not entitled under federal or state law to take leave to care for his girlfriend
When it comes to caring for the girlfriend, see my reply below to Josephine Maira. However, if we are dealing with leave to bond with a newborn child, keep in mind under both FMLA and CFRA that the boyfriend may very well stand in an in loco parentis relationship with the child. Read this from the DOL: https://www.dol.gov/Whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm