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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33475
Experience:  Retired (mostly)
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Unforseen circumstance, FMLA for child bonding

Resolved Question:

I wasn't planning on taking FMLA for child bonding, but due to my wife's father's illness, my wife want to visit her father with kids in another country in a few weeks. Because she may be gone for several weeks, I would like to spend more time now with our 10 month old son. Can I avoid the required 30 days notification in this case? In other words, does this qualify as an "unforeseen circumstance"? Also, will I need to provide any specific documentation to my employer for proof?

Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Title 29 C.F.R. 825.120 provides the regulations for health baby bonding. The problem, as you seem to have anticipated, is that your request for bonding time is not based upon the sort of unforeseeable circumstances contemplated under the FMLA. 29 C.F.R. 825.303. That is, you have known about the birth of your child for 10 months, and your spouse's need to visit her father is not a qualifying reason for you to request FMLA benefits, because neither your spouse nor child is seriously ill or injured so as to require your care, as the result of unforseeable circumstances.

Therefore, you would have to provide at least 30-days notice of your request for FMLA benefits. See 29 C.F.R. 825.302.

Note: FMLA healthy baby bonding time only applies to taking a continuous period of leave. Intermttent time off for bonding is only permitted if the employer consents. So, if your goal is to work part time while your spouse is away, that goal is likely to be denied outright by your employer.

I realize that the answer here is exactly the opposite of what you were seeking. However, where there is no exception found in the law, the best that I can do is to try to help you avoid wasting further time looking for an answer that does not exist.

Please let me know if I can clarify anything or assist you further.
Customer: replied 1 year ago.

California Family Rights Act (CRFA) allows for intermittent leave without employer consent, if leave is taken for blocks of two weeks or more. The first two times can actually be for a smaller period of time.


 


That said, are you saying that unforeseeable consequences are limited to medical conditions requiring child/spouse care? If that is so, then you're saying there can be no unforeseeable consequences in case you're taking bonding leave several months after birth, since taking time off for child/spouse care is not bonding leave, and can be taken at any time (not just first year).

Expert:  socrateaser replied 1 year ago.

California Family Rights Act (CRFA) allows for intermittent leave without employer consent, if leave is taken for blocks of two weeks or more. The first two times can actually be for a smaller period of time.


A: You're correct. See 2 Cal. Code Regs. § 7297.3(d).

That said, are you saying that unforeseeable consequences are limited to medical conditions requiring child/spouse care? If that is so, then you're saying there can be no unforeseeable consequences in case you're taking bonding leave several months after birth, since taking time off for child/spouse care is not bonding leave, and can be taken at any time (not just first year).

 

A: Title 2 Cal. Code Regs. § 7297.3(d) provides: "(d) Minimum duration for CFRA leaves taken for the birth, adoption, or foster care placement of a child. CFRA leave taken for reason of the birth, adoption, or foster care placement of a child of the employee does not have to be taken in one continuous period of time. Any leave(s) taken shall be concluded within one year of the birth or placement of the child with the employee in connection with the adoption or foster care of the child by the employee. The basic minimum duration of the leave shall be two weeks. However, an employer shall grant a request for a CFRA leave of less than two weeks' duration on any two occasions." [emphasis added]

 

The above-bolded regulatory text suggests that your conclusion may be incorrect. My argument here is that time off being requested is not actually related to the birth of the child. It's related to the child's mother's desire to visit her father. Based on these facts the leave request is invalid.

 

If you want to claim that the reason for the leave is simply to bond with the child, unrelated to the mother's desire to visit her father, then the question is: since the child is already 10 months of age, how is this leave request unforeeseeable? You need a valid reason for providing less than 30-day notice (in my opinion).

 

Hope this helps.

Customer: replied 1 year ago.

With regards XXXXX XXXXX beyond the first year, I just meant that you can take FMLA to care for your sick spouse/child, not for bonding.

 

As for unforeseeable, I guess the intent of the law is to allow for bonding time between father and child. Let's consider a scenario where father is expecting to get 2 month vacation time when child turns 10 months, and bond with that child then. However, when that 10 month rolls around, his employer doesn't approve vacation time, due to high workload (I believe this is legal). So, now, father wants to take FMLA, but he needs to give 30 days notice, so he'll only have 1 month left. Wouldn't that be considered an unforeseeable event that would override the 30 days notification requirement? Or are you saying, nothing short of medical emergency would suffice at that point in time? Or perhaps, from legal point of view, it's simply father's fault for not requesting FMLA just in case vacation plans fall through.

 

In my case, I expect not to see my son for several weeks, wouldn't it make sense for me to be able to take FMLA now, to spend time with him beforehand?

 

This is my last reply, I'll accept your answer after this, and thanks for the help.

Expert:  socrateaser replied 1 year ago.
You're asking me to be the judge -- which is sort of dangerous, because my judgment, while pretty objective, may not coincide with the employer or a real judge or arbitrator, should the issue actually enter into dispute mode.

All of your arguments are valid, but I can argue around them (as I'm sure, you can do, as well). Example: the true purpose of FMLA/CFRA leave is to prevent an employer from using the "at will" employment doctrine (in California, Labor Code 2922) to expressly or impliedly coerce the employee into not taking any leave, regardless of circumstances. In your scenario, the employee can take his vacation to care for the child, without electing CFRA leave, and the employer can say, "Sure, here's your two weeks vacation pay -- and oh, by the way, you're fired." So, it's not really "apples and apples" to compare vacation time and CFRA leave, because there is a very substantial difference between the two.

If I were the judge, I would want evidence supporting the connection between the birth of the child and the unforeseeable circumstances. If we allow the mother's need to visit her father in another country to be that circumstance, then we have opened up the CFRA/FMLA to effectively any set of circumstances, no matter how remotely connected to the child's birth (e.g., friend of 5th cousin has unforeseeable hangnail and mother is a nail technician, so father needs time off to bond with child, while mother takes nail appointment).

I realize that's a ridiculous example, but the point is that there must be a limit on the foreseeability of the circumstances, or there is no limit at all.

If you want to be in a position to defeat the employer in a dispute, then you need to be able to "connect the dots" between the child's birth and the unforeseeable bonding requirement. Otherwise, the safe harbor is 30-days notice.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33475
Experience: Retired (mostly)
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