Can male employees use FMLA to care for a new baby?

On Behalf of | Apr 12, 2019 | Attorneys, Blog, Firm News |

Businesses rely on their employees to keep operations moving, and an employee’s extended leave from a job can be difficult for an employer. However, many employees take time off to manage the big events in their lives, such as the arrival of a new child.

You may be prepared for female employees to take time off if they are giving birth, but if a male employee asks for time off to care for a newborn, it may surprise you. You may be concerned that the business will struggle if the employee’s job duties aren’t being fulfilled. Are you required to grant this request?

FMLA is not gender-specific

The Family and Medical Leave Act (FMLA) allows eligible employees to take time off for the birth of a child or for the placement of an adoptive or foster child. They can take up to 12 weeks of leave without risk of retaliation, demotion or termination.

The law allows mothers and fathers to use FMLA to care for children. If an employer were to bar a male employee from taking FMLA leave for a new child or convince them to take less time, they could be at risk of litigation.

FMLA eligibility

Who can take FMLA depends on specific eligibility requirements. It is possible you are not a covered employer and thus your employee does not qualify for FMLA leave. Private companies that qualify as a covered employer have at least 50 employees, so employers with fewer than 50 employees are not covered under FMLA.

Even for employers with at least 50 employees, not every employee at an FMLA-eligible employer qualifies for leave. Employees must meet the following requirements:

  • They must have been employed by your company for at least 12 months, which do not have to be consecutive but generally there shouldn’t be a break in service larger than seven years
  • They must have worked for at least 1,250 hours in those 12 months, which averages at about 24 hours per week
  • They must work in a worksite that is within 75 miles of a location where you have at least 50 employees

If your employee does not meet those requirements, regardless of gender, they do not qualify for FMLA. However, if they do, FMLA leave applies to them.


Employers who are facing litigation from an employee who is claiming discrimination for being denied FMLA leave or who have questions about their employees’ FMLA eligibility can work with an attorney to defend themselves or prevent litigation in the first place.