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Can fathers use FMLA to care for a new child?

As a covered employer, you may be prepared to have a female employee request leave under the Family and Medical Leave Act (FMLA) to care for a new child. What you may not be prepared for is a male employee who requests the same thing.

Your company may have a maternity leave policy that is designed for new mothers but not new fathers. Regardless, it is important to understand what rights male employees have for taking time off to care for a child.

FMLA grants fathers leave

FMLA leave is available for "for the birth of a child and to bond with the newborn child, or for the placement of a child for adoption or foster care and to bond with that child." Parents are allowed to take FMLA, whether they are biological, adoptive, step or foster. It also includes those who stand in loco parentis, which is an individual who provides day-to-day care or financial support for a child without a biological or legal relationship.

The law does not stipulate the sex of the parent, so fathers can use FMLA leave to care for a child. If you are an covered employer and the employee meets the employee requirements, you must grant him or her FMLA leave.

To be an eligible employee, the employee must:

  • Have worked for the company for at least 12 months, which do not have to be consecutive (but if there is a break in service for more than seven years, the employment period prior does not count)
  • Have worked for at least 1,250 hours in the 12 months prior to taking leave, which is an average of 24 hours per week
  • Work at a location with at least 50 employees within 75 miles of their worksite

Fathers are allowed to take time off prior to the birth or placement of a child as well, if the mother needs prenatal care that requires him to be absent from work or if he needs to fulfill placement requirements.

If you offer paid leave for a new child, you may need to review your policy to see if you are legally required to offer paid leave to a male employee as well. 

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