Let's Pretend Prince William Worked In The United States. What Are His Paternity Leave Rights Under The FMLA?

by Franczek Radelet P.C.

mean royal baby.jpgFess up and raise your hand. How many of you were on the edge of your edge of your seat awaiting news of William and Kate's new arrival?  I can picture you now, feverishly refreshing your Facebook and Twitter pages to catch a glimpse of the latest heir to the British throne.  

As we await a name for this new little British bundle, I found myself a bit envious over the fact that William and Kate can take just as much parental leave as they'd like to bond with their newborn child. In fact, given his family bloodlines, William can take all the bonding time he'd like, as he surely will not ascend the throne any time soon. Under British law, William will receive two weeks' pay from his employer (the Royal Air Force) during the time he will take off. 

But those of us in FMLAland can't help but wonder what paternity leave rights William would have if he were a regular 'ol chap living and working in the land of the free and the home of the brave.  

So, let's us assume for a moment [or less, if you're already disturbed by this article] that Prince William was instead "Billy Windsor," a born and bred Hoosier, living and working in Fortville, Indiana.  There, he works for Chuck, a successful breeder of polo horses, and an employer of thousands of other Billies, Bobs and some Susies in Fortville.

Naturally, Billy Windsor is a good dad, and he has requested that Chuck give him time off attend prenatal visits with Kitty (the mom), and later, to bond with his newborn child -- name to be determined.  

Can Billy take FMLA leave to attend Kitty's prenatal visits?

Hear ye, hear ye, Billy.  You can take FMLA leave for prenatal visits only if you are married to Kitty. Seriously, I'm not talking rubbish.  Under the FMLA regulations, only a husband is entitled to FMLA leave where he is needed: 1) to care for his pregnant spouse who is incapacitated; 2) to care for her during her prenatal care; or 3) to care for her following the birth of a child if she has a serious health condition. Unmarried dads, you're out of luck.  29 C.F.R. 825.120(a)(5)

Can Billy take FMLA leave to care for Kitty because she's dealing with complications from pregnancy?

Yes, but subject to the answer directly above.

Can the Employer Require Billy to Obtain a complete medical certification in support of his bonding leave?

No.  Keep in mind that bonding leave is time for mom and dad to get the hang of parenthood and spending quality time with their newborn baby.  Naturally, there is no "serious health condition" involved. Thus, the employer can only obtain information such as confirming the pregnancy, due date and birth of the child.  On the Notice of Eligibility form (pdf), there is a section to request this limited information. For more info on this, check out one of my old podcasts on this topic.

Billy wants to take bonding leave in small spurts -- one week here, a few days there.  Can Chuck require him to take bonding leave all at once?

You're bloody right, Chuck can.  The FMLA regulations are clear: the employee can take intermittent or reduced schedule bonding leave only if the employer agrees.  29 C.F.R. 825.120(b)  

Chuck is a highly unusual fellow in that he provides paid parental leave to his employees.  He gives eight weeks of paid leave to dads and 16 weeks of paid leave to moms.  Does Billy have a viable gender discrimination claim because women in the workplace are treated better than men?

Likely, no.  See my previous post and interview on this topic.  Women in Chuck's workplace likely are given extra paid time off for the recovery period after childbirth, which generally is recognized to last six to eight weeks.  Gents, stifle it.  Let's just consider ourselves lucky we're not the ones giving birth (we'd be whining like babies!) and let's just tip our cap to the opposite sex on this one.

What if Billy and Kitty both work for Chuck?  What FMLA leave entitlements do they have?

This one is straightforward.  If both spouses work for the same employer, they get snookered on this one. According to the regs, if both husband and wife are employed by the same employer, they can be limited to a combined total of 12 weeks of FMLA leave if leave is taken for the birth of the employees' son or daughter or for bonding leave.  

Caveat No. 1: This limitation only applies if the parents are husband and wife.  If the parents aren't married, they each get the full 12 weeks of bonding leave.  Odd loophole in the regs?  Me thinks so.

Caveat No. 2: If one spouse is ineligible for FMLA leave, the other spouse is entitled to up to 12 weeks of bonding leave. Fancy that!

Caveat No. 3: Keep in mind that both parents each can take up to 12 weeks of FMLA leave to care for their child with a serious health condition. The limitation above only relates to bonding leave!

All kidding aside to my fellow Indiana Hoosiers and to the royal family, best wishes not only to William and Kate, but all the moms and dads out there ushering in the next generation! Cheers! This calling isn't easy.

Photo credit: memegenerator.net

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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