I have two employees who are unmarried, but who have had a child together. Both employees have been with my company (which has more than 50 employees) for more than a year and have always worked full-time, so they have more than 1,250 hours worked in the last 12 months. These employees want to take time off to bond with their newborn child. How much time off are they entitled to take to bond with their child?
Normally, under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), a parent is entitled to take up to 12 weeks of time off to bond with a newly born or placed child, within 12 months of the birth or placement of the child.
Under the FMLA, however, where both parents are married and work for the same company, the employer is allowed to restrict the leave to a combined total of 12 weeks.
In your situation, the restriction under the FMLA would not apply because the parents are unmarried. Conversely, CFRA allows an employer to restrict the usage where both parents work for the same employer (regardless of marital status) to a combined total of 12 weeks.
As a general rule, where state and federal statutes are in conflict, an employer must provide the protections to the employee of the statute that offers the employee the greater protection.
If the mother used her 12 weeks of FMLA time off during her pregnancy disability leave, she still would have 12 weeks of baby-bonding time available under CFRA.
In that the FMLA grants greater protection to the father, he could decline to use CFRA time off, and still would have 12 weeks of time off for baby bonding under the FMLA.
The bottom line is that in this particular situation, where the parents work for the same employer, they would be entitled to the same amount of time off as parents who work for two different employers with each parent receiving up to 12 weeks of protected time off within the year after the birth of the child.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
