I’ve said it before many times: One reason employment law is so interesting is that just when you think you’ve figured things out, you can rediscover little quirks in the law that you may have overlooked on first glance.

Not all intermittent leave is created equally

My latest example came last week when an out-of-state lawyer and friend called me to discuss a legal concept.  He wanted to talk about intermittent FMLA leave for adoption or foster care. 

Simple enough, you think.  Intermittent leave is required by the FMLA, you recall, from dealing with employees with a serious health condition.  So the same should hold true for foster care placements, right?

But then you go to the FMLA regulations.  And it’s not quite what you think it is.  The relevant regulation (29 C.F.R. 825.121) states:

An eligible employee may use intermittent or reduced schedule leave after the placement of a healthy child for adoption or foster care only if the employer agrees. Thus, for example, the employer and employee may agree to a part-time work schedule after the placement for bonding purposes.  … The employer’s agreement is not required for intermittent leave required by the serious health condition of the adopted or foster child.

Notably, this langauge is the same for the birth of a healthy newborn child as well. 

So, suppose that six months after the child is adopted, the employee wants to take 4 weeks off for bonding time.   That request probably falls within a normal FMLA request.  It’s not intermittent or reduced leave; it’s just time off.  (Typically unpaid, unless the employer’s policy requires or allows paid time off for that time.)

But suppose that, after six months, the employee wants to take a day off each week for 12 weeks for bonding time. Under the FMLA regulation cited above, the employer has the discretion to allow such intermittent time off when the placement involves a healthy child.  

Under Connecticut’s FMLA, the same concepts (under Conn. Regs. Sec. 31-51qq-14) apply, for the most part. 

For employers, not all employment laws are intuitive. They can be confusing and conflicting.  Even when you think you know the answer, it can be helpful to review the applicable regulations or check with legal counsel to make sure that the answer you think you know, is the right answer after all.

And if you ever get a request for intermittent leave for the birth or adoption of a healthy child, now you know that employers have some discretion on whether to allow such leave.