Heard It on the Hotline: Can Wisconsin employees take intermittent FMLA to bond after the birth or adoption of a child?
MRA members frequently call our HR Hotline with FMLA questions, especially in Wisconsin where federal and state obligations must be considered. A question that comes up is when an employee is eligible for six weeks of leave under Wisconsin FMLA, must the organization allow the bonding time to be taken on an intermittent basis? And if so, for how long?
Employee requests for leave for bonding under the Family and Medical Leave Act (FMLA) can be covered under several scenarios—federal and Wisconsin leave running concurrently, federal leave only, or Wisconsin leave only. The number of potential leave combinations makes FMLA compliance a real challenge for covered Wisconsin organizations. The following information focuses on leave for bonding time under the Wisconsin FMLA.
Intermittent Bonding Leave Must Be Allowed Under Wisconsin FMLA
Taking leave for bonding with a new baby before or after birth or adoption on an intermittent basis is an option for employees, and does not require the employer’s approval under the Wisconsin FMLA.
Wisconsin statute 103.10 (3)(b) indicates:
An employee may take family leave for any of the following reasons:
1. The birth of the employee's natural child, if the leave begins within 16 weeks of the child's birth.
And Wisconsin statute 103.10 (3)(d) indicates:
(d) An employee may take family leave as partial absence from employment.
Even though the employer must permit intermittent leave to be taken for bonding with the new child, the length of time for intermittent bonding can be limited. For example, as referenced above, the leave must begin within 16 weeks of birth. In the case of intermittent leave, each increment of leave can be considered a new leave period and, therefore, each increment must begin within 16 weeks of the birth.
Employee has requested leave every Friday following the birth of his son. How long must the employer allow the employee to have off every Friday?
Since each Friday is a new noncontinuous increment of leave, the employer would need to permit leave for each Friday up to 16 weeks post-partum. The Friday of the seventeenth week would no longer have begun within 16 weeks of the birth and, therefore, the employer would not be obligated to permit. The employee could take his remaining weeks of bonding as a continuous leave of absence, as long as it begins within 16 weeks of the birth.
Employee’s wife is employed with another organization. She will be taking the initial 12 weeks off following the birth of the baby. Your employee would like to begin his continuous leave during week 13 following the birth. How long must the employer permit the employee to take his leave?
The employee would be entitled to use his full six weeks of continuous leave since the leave began within 16 weeks of the birth. Therefore, the employee could take weeks 13 through 19 following the birth of his baby as family bonding leave under the Wisconsin FMLA.
Employee would like to take every Friday starting 16 weeks prior to the anticipated date of birth and ending once he exhausts his six weeks for bonding time.
The employer would need to permit the intermittent Friday leave both prior to the birth and following the birth until the employee has exhausted his full six weeks of leave since each increment of leave began within 16 weeks of the birth.
In order to avoid claims under FMLA, employers need to consider both federal and Wisconsin leave laws, as applicable, prior to approving or denying FMLA leave requests.