By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts
onsider this: A male officer asks a female chief about working revised hours and receiving some time off. He explains that his wife, who works for the town library, had a baby a few weeks ago and has been on family medical leave. She would like to go back to work part-time and have her husband stay home once in a while to help care for the couple’s baby boy. The officer wonders if there is any chance he can work nights and maybe take off a few days each week.
The chief knows without checking that the officer is eligible for some time off under the Family and Medical Leave Act (FMLA), since he has been employed by the municipality for at least 12 months and has worked for at least 1,250 hours during the 12 months immediately preceding the beginning of the requested leave. She tells the officer that he is entitled to a total of 12 work weeks of leave during any 12-month period. This leave is granted to an employee by the FMLA because of the birth of a son or a daughter and in order to care for that son or daughter. Similar rules apply to parents who adopt a child or care for a foster child.1
The chief explains that she recalls reading somewhere that fathers and mothers are entitled to take up to 12 weeks of job-protected leave when a son or daughter is born to them and that the leave may be taken by both parents at the same time or sequentially. However, she reminds the officer that if both parents work for the same employer—in this case, the town—they are entitled to take a sum total of only 12 weeks of leave between the two of them, even if they work in separate departments.2 The chief recalls discussing this with the town’s labor counsel who pointed out that, like all FMLA leave, birth leave is available to all eligible employees, male and female. Making it difficult for a male employee to take leave to bond with his newborn or penalizing him for taking or requesting leave could subject the department to a charge of sex discrimination or FMLA violation.
The chief asks the officer how much leave his wife plans on using. The officer explains that she is talking about using six to eight weeks. The chief replies that if the officer and his wife use only a portion of their combined twelve weeks of leave, each is entitled to the difference between the amount taken and the full twelve weeks for other FMLA purposes (except for the care of a parent).
The officer asks when the leave can begin. The chief notes that since neither the collective bargaining agreement nor the town’s personnel bylaws say anything about such leave, only the federal rules will apply. While the officer could have asked to start the leave prior to the child’s birth to care for his pregnant spouse if she became incapacitated or to accompany her to prenatal care, the chief explains that the officer also can take leave following the birth if he is needed to care for his spouse, should she have a serious medical condition; would like to bond with his child; or is needed to care for his child, should the child have a serious health condition and the officer is needed to help provide care, including psychological comfort.
The chief tells the officer that when she was pregnant, there were no laws like the FMLA, and she and her husband had to adjust their schedules and find babysitters. She explains how inconvenient this was to her family. While she wants to help out, she has to balance the officer’s request with the needs of the department. She notes that a request for intermittent or reduced-schedule leave is not something the employer must grant. Rather, it is only available if the employer agrees. The chief says that she wants to discuss the request with her command staff and the officer’s shift commander, since an employer may require the employee to transfer to an equivalent position during the period of intermittent or reduced-schedule leave to better accommodate the department’s operational needs.3 The only times an employer’s permission is not required is if the intermittent or reduced-schedule leave is needed to care for a seriously ill newborn or a seriously ill adopted or foster child.
The chief tells the officer that she will review his request, and, although the FLMA gives her five days to reply, she will get back to him in no more than a few days. She asks the officer to bring in the child’s birth certificate, since the town’s policy is to require that an employee provide reasonable documentation of the family relationship if an employee requests FMLA leave for the birth or adoption of a child or for the placement of a foster child. The chief promises to return the official document to the employee, as the FMLA requires.4
The officer asks if he could spread his leave over the next 12 months. The chief says that since the wife has already started her FMLA leave, the chief wants to check with the town’s human resources director. The director recalls that FMLA leave to care for an employee’s healthy newborn baby must be taken within 12 months of the birth of the child, unless state law or the employer’s policies provide for otherwise.5 The chief learns that FMLA leave for the birth of a child begins on the date of the birth. Such leave must be taken consecutively (that is, up to 12 work weeks in a row), unless the employer and employee agree it may be taken intermittently. However, if the child or the mother suffers a serious health condition as a result of the birth, the employer may not deny a request for intermittent leave.
The chief is asked by a superior officer why the officer requesting leave did not request this leave sooner, since everyone knew the couple were expecting. The chief explained that in cases where the birth is foreseeable based on an expected birth, the employee is required to provide at least 30 days’ notice. However, the FMLA specifies that if the date of the birth requires leave to begin in fewer than 30 days, the employee must provide “such notice as is practicable.” In this case, rather than make an issue of the short notice request, the chief asks the staff to see what accommodations are possible without unduly disrupting the department’s operation and without violating the collective bargaining agreement.
A few days later, when speaking with the chief about the decision to allow him to use whatever time off his wife does not use, up to a combined total of twelve weeks under the FMLA, the officer asks if he can be paid for some of the time he is off on FMLA leave. The chief points out that in the case of leave for the birth of a child, eligible employees may substitute (or be required by employers to substitute) any accrued vacation leave, personal leave, or “family” leave for any part of the leave provided for under the FMLA.6 For example, if an employee has accrued three weeks of vacation leave and two weeks of “family” leave, that employee may use the five weeks of accrued paid leave as part of the twelve weeks of family and medical leave under the FMLA. Even if the employee does not wish to use accrued paid leave, the employer may require the employee to do so. The chief explains that an employer may not require an employee to take a minimum of a full week of leave at one time. In this case, if the officer’s wife takes five weeks of leave, the town must provide the officer with only an additional seven weeks of leave for a total of twelve weeks.
Before thanking the chief for her support and cooperation, the officer asks about payments for his health insurance while he is on FMLA leave. The chief reminds him that there is nothing to worry about. This is because if an employer provides health insurance, that employer must maintain coverage under its group health plan at the same level of coverage that would have been provided if no leave had been taken. The very sleepy father smiles and shakes the chief’s hand. ■
1For information about FMLA as it relates to adoption and foster care, visit the U.S. Department of Commerce, Office of Human Resources Management website at http://hr.commerce.gov/Employees/Leave/DEV01_005926.
229 CFR §825.120.
329 CFR §825.120(b) and 825.121(b).
429 CFR §825.122(j).
529 CFR §825.120(a)(2).
629 CFR §825.207(b).
Please cite as:
John M. (Jack) Collins, “FMLA Leave for the Birth of a Child,” Chief’s Counsel, The Police Chief 78 (May 2011): 12–13.