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It’s your call: Allowing intermittent FMLA leave after birth is up to employer


Some new parents don’t want to come back to work full time after giving birth. They may prefer a part-time schedule, using intermittent FMLA leave.

But you don’t have to allow intermittent leave following birth unless the infant suffers from a serious health condition. The U.S. Department of Labor’s FMLA rules clearly say, “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.”

That means, if the baby is healthy, you can require employees to take their entire FMLA leave at once and return to full-time work. Whatever you decide, put it in writing and be consistent.

Recent case: When tax attorney Ji became pregnant, her law firm let her take time off for doctor appointments, birth and recovery. After she returned to work, Ji found her regular 60- to 70-hour weeks made it hard to care for her baby.

She requested intermittent FMLA leave and permission to work from home. Her request was denied. Shortly after, she was terminated during a reduction in force.

She sued, alleging interference with her FMLA rights.

But the court said she had no case. It noted that intermittent FMLA leave for new parents requires the employer’s consent. Otherwise, the employee can’t take intermittent leave. The only exception is when the child has a serious health condition. (Kim v. Goldberg, et al., No. 10-CIV-6301, SD NY, 2012)

Final note: Remember that most employers are now required to provide breaks (and space) for nursing mothers to express milk.