Every once in awhile we run across an unexpected twist in the law. This happened recently when a client called asking how much “baby bonding leave” the agency must provide where two of its employees, who were not married to each other, had just become parents.
As you know, under both the federal law, FMLA, and its California equivalent, CFRA, an employee who meets certain conditions is entitled to take off up to 12 weeks in a year for various reasons, one of which is because of the birth of a child. Both parents are entitled to the leave, not just the mother.
There are special provisions for situations where both parents work for the same employer. Under California law, the employer of both parents can limit the amount of leave taken by both parents to 12 weeks total. Thus, under California law the parents are not entitled to 12 week each. The statute does not require that the parents be married to one another. California law also prohibits discrimination on the basis of marital status.
Federal law is more specific. The 12 week limitation where both parents are employed by the same concern only applies where the parents are husband and wife! Thus, under FMLA, an employer can limit baby bonding leave to 12 weeks total for the parents if they are married to one another.
What happens under federal law if the parents are unmarried? Apparently each parent is entitled to his and her own 12 weeks of leave time.
Thus, under federal law, unmarried parents are entitled to more leave time to take care of a new baby than are married parents where both parents work for the same employer.
Did Congress intend this result? Highly doubtful! Nonetheless, this is the result of the legislation. Who knew?