Human Resource Blog

Intermittent FMLA leave for Pregnancy in Vermont

I work in HR (new, self-training and still learning-love your site!) for an employer in Vermont with 75+ employees. Can an employee who is taking FMLA to give birth/child bonding spread it out so she take 10 full weeks off and then works part time for the next four weeks (taking half a week of FMLA each of those four weeks)in order to use the full 12 weeks? Are analagous arrangements treated similarly?

Also, if she is able to work without restrictions up until she takes leave, should/can we require a certification from her doctor that she is fit to work when she wants to come back?

Thanks in advance for your help!

Thanks, we love helping new, self-trained HR people! This is how most HR pros get their start.

There is no need for you to offer intermittent leave for care of a newborn, under either Vermont or federal law. So you do not have to permit the employee to do this. If it is in the companys best interest to have her return part-time, then you may want to permit it — but be aware that you are setting a precedent and may have to allow other employees to do the same.

If this employee works at least 30 hours per week, has worked for your company continously for 12 months and worked at least 1,250 hours in the past 12 months, she is covered by both the federal Family and Medical Leave Act or FMLA and the  VPFL or Vermont Parental and Family Leave law. You might assume the federal law takes precedence, but you would be mistaken.  When an employee is covered by both a federal and state law, the employee is entitled to coverage under whichever law provides the greater benefit to the employee.

In this case, both FMLA and VPFL permit an employee to take up to 12 weeks of unpaid time off at the birth of an infant. As an employer, you can and should require that the two run concurrently, so the employee is not entitled to 24 weeks off.

When an employee takes FMLA or VPFL for a medical condition, or to care for a family member with a medical condition, the leave may be intermittent, if medically required. If this leave was for a serious health condition, yes, the employee could take 10 weeks of leave and then use hours of FMLA to work part-time, until all those hours were exhausted. Or, the employee could use FMLA to work half-time for 24 weeks. Or any combination thereof. (Obviously, you need to track the amount of FMLA used and the amount remaining.)  

However, leave to care for a new child (newborn, adopted or a foster child) is not medically required. Therefore, as an employer you can require that this type of leave be continuous — that the new mother take 10 weeks off, or take 12 weeks off, but not return to work part-time work after 10 weeks. This is how most employers handle FMLA for baby bonding — as an all-or-nothing proposition.

Note that either way, once the 12 weeks of FMLA is exhausted, the new mother must return to her former work schedule. If she is unable or unwilling to work full-time, she can be terminated. However,  when the mother returns, the VPFL law permits her to take short-term leave for doctors appointments for the child, and prohibits you from requiring a doctors note for such leave, and if she still has leave left.

You can and should require that an employee furnish a doctors *fitness for duty* note anytime you have reason to believe that the employee was unfit for duty, for whatever reason. If you fail to do so, and the employee is injured at work, you may be liable for that injury or medical complication. While pregnancy is not a short term disability in and of itself, childbirth is. Normally, after childbirth a woman is medically unable to work for 4 to  6 weeks. So yes, you should require that the woman provide a note from her doctor that she is physically able to work. (If you were granting FMLA to an employee after adopting or fostering a child, you could not require a doctors note.)

We are here to help, so feel free to post any additional questions that you may have.

Read more about the Vermont Family Leave Law at:  http://www.labor.vermont.gov/Portals/0/Wage%20Hour/fleave.pdf and http://www.atg.state.vt.us/issues/employment-law/leave.php