We have two employees, Jackie and John, who are married to each other and recently had a baby. Jackie has just been released to return to work from her pregnancy-related disability after using up 10 weeks of leave under the Family and Medical Leave Act (FMLA) and Pregnancy Disability Leave (PDL). They both want to take the maximum time off for child bonding and both are eligible for leave under FMLA and California Family Rights Act (CFRA). How much leave must we provide each employee?
Family and Medical Leave Act
FMLA typically provides each eligible employee up to 12 workweeks of FMLA leave for qualified reasons in a 12-month period.
When both spouses are employed by the same employer, they are entitled only to a combined total of 12 workweeks of FMLA leave per year for the birth of a child, adopting or fostering a child, or caring for a parent with a serious health condition. (29 Code of Federal Regulations 825.201).
Child bonding must be used within the first 12 months of the birth or placement of the child.
California Family Rights Act
CFRA requires the employer to allow each parent, regardless of marital status, 12 weeks of child bonding within one year of the birth or placement of the child. (Cal. Code Regulations, Title 2, Section 11090).
Application
Determine how much FMLA and CFRA leave each employee currently has, before using child bonding. After that, determine how much of each FMLA and CFRA leave of absence each employee can use for child bonding, and designate the leave of absence.
Applying and designating each leave of absence will depend on the facts and for what purpose the employees use their leave of absence.
FMLA for Jackie and John
Jackie is entitled to a full 12 weeks of FMLA for her own serious health condition. Jackie has used 10 weeks of her FMLA for that purpose when it ran concurrently with her PDL. Jackie has 2 weeks of FMLA remaining which can be used for child bonding. John has not used any FMLA yet.
The 12 weeks of FMLA leave of absence for child bonding would be shared between Jackie and John. However, because Jackie already used 10 weeks of FMLA, she has only 2 weeks left to use.
If they were to share the 12 weeks for child bonding, then the employer would designate 2 weeks of FMLA for Jackie and 10 weeks of FMLA for John.
CFRA for Jackie and John
Each parent has their own 12 weeks of child bonding under CFRA. Jackie can take up to 12 weeks of child bonding while John also can take up to 12 weeks of child bonding under CFRA.
Conclusion
In this scenario, for Jackie, the employer would designate 12 weeks of CFRA leave and 2 weeks of FMLA leave running concurrently. For John, the employer would designate 12 weeks of CFRA leave and 10 weeks of FMLA leave running concurrently.
The result is that each employee would have up to 12 weeks of child bonding. Jackie would use all her FMLA and CFRA leave. John would use 10 weeks of FMLA and 12 weeks of CFRA. That means John still would have 2 weeks of FMLA leave remaining that he could use for his own serious health condition.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. 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.
