FMLA Paternity Leave: Can Dads Take FMLA, and Is It Paid?

FMLA is the one leave law that covers dads in all 50 states. It’s also the easiest one to misread. It protects your job. It doesn’t pay you a cent.

Here’s what FMLA paternity leave actually gives you, and how to stack it with the leave that does pay.

Does FMLA cover paternity leave for fathers?

Yes. The Department of Labor says mothers and fathers have the same right to FMLA leave for the birth of a child, to bond with a newborn. You don’t need to prove anything is wrong with her or the baby. A birth is reason enough.

You qualify if you pass all three parts of the federal test:

• 12monthsYou've worked for your employer for at least 12 months. They don't have to be in a row.
• 1,250hoursYou've worked at least 1,250 hours in the 12 months before the leave. Roughly 24 hours a week.
• 50employeesYour employer has at least 50 employees within 75 miles of where you work.

The employer itself also has to be covered: private companies with 50 or more employees for 20 or more weeks a year, and every public agency and school, whatever their size.

Fail one test and FMLA doesn’t apply. Your state or your employer may still give you leave. Our guide on how to ask for paternity leave covers what to do then.

Is FMLA paternity leave paid?

No. FMLA leave is unpaid. What it guarantees is your job and your health insurance, not your paycheck.

What FMLA does protect:

• Your job. When you come back, you get the same job or one that’s virtually identical: same pay, same benefits, same shift.
• Your health insurance. Your employer keeps your group health plan going on the same terms. You still pay your usual share of the premium. Use the moment to add the baby to the plan, which has its own 30-day deadline.

Money comes from somewhere else: your employer’s paid parental leave, paid time off or a state program. FMLA can run at the same time as paid leave. Your employer can even require you to use your vacation days during FMLA. So the 12 weeks are the protected window, and the paid leave fills part of it.

Twelve states and DC pay a share of your wages while you’re off. Check paternity leave by state to see if yours does.

How many weeks of FMLA paternity leave do you get?

Up to 12 workweeks in a 12-month period. Bonding leave has to be used within 12 months of the birth. Weeks you don’t use by the baby’s first birthday are gone.

One timing detail: depending on how your employer counts its 12-month period, a baby born late in one leave year can sometimes mean leave in two years back to back. Ask HR how they count. It’s in the list of questions worth asking anyway.

Give your employer 30 days’ notice when you can. With a due date on the calendar, you can.

Can dads take FMLA during pregnancy?

Sometimes, yes. Bonding leave starts at the birth, but FMLA also covers caring for a spouse with a serious health condition, and pregnancy can count. The Department of Labor says a husband can use FMLA to care for his pregnant spouse during her prenatal care, or when she can’t work because of the pregnancy, such as severe morning sickness or ordered bed rest.

Two catches:

• “Spouse” means married. For caring for her during pregnancy, an unmarried partner isn’t covered by federal FMLA. Bonding with your baby after the birth is covered either way.
• Those days come out of the same 12 weeks. Every day you use before the birth is one less day with the baby.

Prenatal appointments are worth it, so pick the big ones. Here’s which prenatal appointments dads should attend.

Can you take FMLA paternity leave intermittently?

Only if your employer agrees. For bonding with a healthy baby, taking leave in chunks or working reduced hours needs your employer’s OK. Without it, you take the leave in one block.

The exception: if the baby or mom has a serious health condition, a NICU stay for example, you can take intermittent leave when it’s medically necessary, no agreement needed.

Plenty of employers say yes if you come with a plan. Two weeks at the birth, then two more when her leave ends and you’re home alone with the baby. That second block is where most dads learn the job.

What if you and your partner work for the same employer?

If you’re married and work for the same company, you can be limited to 12 weeks combined for bonding, not 12 each. Unmarried parents at the same company each get their own 12 weeks.

The shared limit only applies to bonding. Leave to care for her after a difficult birth, or for her own recovery, isn’t part of the split.

FMLA paternity leave in Texas, Florida and other states

In Texas, Florida and most other states, FMLA is the only leave law that covers you. Neither state has a paid family leave program, so any pay comes from your employer.

That makes three questions for HR more important:

1. Does the company offer paid parental leave, and does it run at the same time as FMLA?
2. Can I use vacation or sick days to get paid during FMLA?
3. If I don’t qualify for FMLA, what leave can I still take?

Some states add their own unpaid leave on top of FMLA, or cover smaller employers. California is the big one: its CFRA covers companies with just five employees. Here’s the full California guide.

How to request FMLA paternity leave

Tell HR in writing, about 30 days before the due date. You don’t have to say “FMLA” in the request. Saying you need leave for the birth of your child is enough for your employer to work out whether FMLA applies and tell you.

Then:

• Ask for the rules in writing: how many weeks, paid or unpaid, and whether vacation days get used up.
• Give the dates you want, and say if you’d like to split them.
• Update them when the baby arrives. Babies rarely show up on the due date.

Our free HR email template does the writing for you. Fill in the dates and send it.

Paid or not, take the weeks. Your baby only does the first ones once.

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General information, not legal advice. Your rights depend on your employer, your state and your situation. Check with HR or the Department of Labor’s Wage and Hour Division at 1-866-487-9243.

Sources: US Department of Labor: Fact Sheet #28Q, leave for the birth of a child, US Department of Labor: FMLA, US Department of Labor: FMLA and pregnancy.