Two employees, a husband
and wife, requested FMLA leave for the birth of their first child. The wife wants the full
12 weeks, while the husband has asked for the first six weeks. We want them to take the time,
but the timing is bad and we would like to have the husband take the second six weeks [of
the wife's leave] instead of the first six weeks. Since he has given sufficient notice, can
we do this?
Although the FMLA requires an
employer to provide leave for the birth of a newborn child to both the father and mother
of that child, the law does not require an employer to provide both parents with their own
12 weeks period of FMLA leave. Rather, the FMLA provides that if where two employees are
entitled to leave for the birth of a child, the combined number of weeks of leave for both
may be limited to a total of 12 weeks unpaid leave during any 12-month period. Therefore,
while you are not required to grant both employees the requested leave, nothing in the FMLA
prevents you from providing greater rights than given by law and granting the additional
weeks of leave at your discretion.
A better solution might be to grant the wife's request, deny the husband's (though you should discuss this with them after informing them of their rights to determine if they wish to alter their requests in any way) and then allow the husband to take another type of leave as may be provided for by your company policy. This way you do not bind the company to all the requirements of the FMLA (e.g. continuation of benefits, reinstatement upon return, notification etc.), or set a precedent for granting more leave than the FMLA provides, but you accomplish your stated goals of giving both parents time off with their newborn.
One final note: Remember that for the birth of a newborn, parents may take leave for up to one year after the date of birth. Therefore, depending on when the leave request is resubmitted, one or more of the weeks may qualify under the FMLA. Follow your normal procedures to make this determination.
