However, getting the time in can be hard for working fathers. According to the Bureau of Labor Statistics, 96% of employed fathers worked full-time in 2018 regardless of the age of their children. Unfortunately, the Bureau reports that only 19% of full-time American workers have access to Paid Family Leave.
While paid paternity leave is still in its infancy, so to speak, there are unpaid, federally mandated leave options available to new fathers.
How do you use the FMLA?
The Family Medical Leave Act provides 12 workweeks’ worth of unpaid leave for eligible employees during a 12-month period. It expressly provides that those 12 weeks can be used for the birth or placement of a child, either for adoption or foster care or for bonding with your child until one year of age or up to one year after placement. If your employer already provides a specific amount of unpaid leave days, then the FMLA supplements extra days to reach a 12-week period. Alternatively, if your employer already provides a specific amount of paid leave days, you can utilize those paid days as part of your FMLA coverage and the 12 weeks will be reduced by any paid time you take. However, the FMLA does not require your employer to provide paid leave other than what they already would give.
Be aware that the FMLA also has a provision that prevents double utilization from spouses that work for the same employer. If you and your spouse both work for a certain company, your company may permissibly limit your total number of workweeks to 12 instead of 24.
You must meet some minimum requirements to be eligible for FMLA. First, you must have worked for your current employer for at least 12 months and for at least 1,250 hours during the preceding 12-month period before your request for FMLA. For example, if you’ve worked at XYZ Company for 5 years and you now want to request FMLA, you need to have worked 1,250 hours during your most recent annual period to be eligible.
Your company must also employ at least 50 employees within a 75-mile radius. So, if your employer only has one site that employs 30 individuals, you will not be covered. However, if there is a second site 15 miles away that has another 30 individuals then you will be covered.
If you’re planning on having a child, either by birth, adoption, or foster care, it is imperative that you give your employer no less than 30 days’ notice before the date of leave is to begin.
Returning from FMLA
When you return from FMLA, it is mandated that your employer restore you to either the position you held when your leave began, or to an equivalent position with equivalent benefits, pay, and other relevant conditions. There are exemptions to this rule for highly paid employees within the top 10% of their company’s salary range.
What if something goes wrong with my FMLA leave?
Unfortunately, employers don’t always get it right when it comes to the FMLA and they engage in some illegal act constituting interference or retaliation. Sometimes, their error is they interfere with your ability to use FMLA. Employers cannot restrain or deny an eligible employee’s ability either to take leave under the FMLA or to be reinstated to their position upon their return. They even can be liable even if they don’t intend to interfere, as pointed out by the Northern District of Georgia in Gutter v. GuideOne Mut. Ins. Co. in 2014.
An employer can also violate the FMLA if they retaliate against an employee who has taken FMLA leave or who has complained about FMLA violations. Retaliation does require intentional discrimination. An employer who terminates or disciplines an employee for using FMLA-provided rights is liable to the employee if the employee can show a discriminatory motive.
If either of these instances sound familiar to you, please reach out to the attorneys at Legare, Attwood & Wolfe470-823-4000 whose practice is dedicated to helping workers like you.