Paternity Leave and the FMLA: What Partners Need to Know

Time at home in the first weeks with a new baby is not a luxury for the parent who did not give birth. It is when you learn to feed, soothe and care for your child, and when your partner may need the most help recovering. The American Academy of Pediatrics notes on its HealthyChildren.org site that taking time off in the first weeks or months can help lay a foundation for a baby's health and development.

In the United States, the main federal law that protects that time is the Family and Medical Leave Act (FMLA). It does not guarantee pay, and not every worker qualifies, so it pays to understand the rules well before the due date or placement date. This guide walks through what the U.S. Department of Labor (DOL) says about the FMLA for new parents. It is general information, not legal advice; HR or the DOL can answer questions about your situation.

Who the FMLA covers

The FMLA applies to covered employers and eligible employees, and you need both.

Covered employers, according to DOL Fact Sheet #28, include:

• Private employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year
• Public agencies, including federal, state and local government employers, regardless of size
• Public and private elementary and secondary schools, regardless of size

You are an eligible employee if you have worked for a covered employer for at least 12 months, have at least 1,250 hours of service in the 12 months before your leave starts, and work at a location where the employer has at least 50 employees within 75 miles.

If you don't meet these tests, the FMLA may not protect your leave, but your employer's own policy, a union contract or state law still might.

What you can take leave for

Eligible employees may take up to 12 workweeks of FMLA leave in a 12-month period. For new parents, the DOL's Fact Sheet #28Q describes several situations that qualify:

• The birth of your child and bonding with your child during the 12-month period beginning on the date of birth
• The placement of a child with you for adoption or foster care, and bonding during the 12 months after placement
• Certain steps before an adoption, such as counseling sessions, court appearances or travel to another country to complete the adoption
• Caring for a spouse during incapacity due to pregnancy, such as severe morning sickness or complications requiring bed rest, or for prenatal care
• Caring for a spouse recovering from childbirth
• Caring for a newborn who has a serious health condition

The DOL is explicit: "Both mothers and fathers have the same right to take FMLA leave for the birth of a child and bonding." The FMLA's definition of a child is broad and includes biological, adopted and foster children, stepchildren, legal wards, and children of a person standing in loco parentis, so many kinds of families are covered.

Planning the timing

You don't have to take bonding leave all at once, but there are limits on how you split it.

• Continuous leave: You can take your 12 weeks in one block.
• Intermittent or reduced-schedule leave: For bonding, you can split leave into separate blocks or work part-time while on leave only if you and your employer agree.
• A sick or hospitalized baby: If your child has a serious health condition, such as a stay in a neonatal intensive care unit (NICU), you can use intermittent leave to care for them without your employer's agreement.
• The leave year: Because bonding leave can be used anytime in the child's first year and employers choose how they define the 12-month leave period, some parents may be entitled to more than 12 weeks of bonding leave across two consecutive leave years. Ask HR how your employer counts its leave year.

For example, imagine a hypothetical couple, Jordan and Sam, whose baby is due in March. Jordan takes two weeks off at the birth, then, with the employer's written agreement, works half-time for several weeks when Sam returns to work. It works because the reduced schedule was agreed in advance.

One special rule matters for some couples: eligible spouses who work for the same employer are limited to a combined total of 12 workweeks for bonding with a new child. The DOL notes that this limit does not apply to unmarried partners who work for the same employer.

Giving notice and paperwork

When leave is foreseeable, as most birth-related leave is, the DOL says you generally must give at least 30 days' advance notice and follow your employer's usual procedures for requesting leave. If the timing changes, such as an early birth or a sudden placement, give notice as soon as possible and practical.

You don't have to say the words "FMLA leave," but you do need to give enough information that your employer can tell the leave may be covered.

Your employer may not require a medical certification for leave to bond with a newborn or a newly placed child. They may ask for reasonable documentation of the family relationship, which can be a simple written statement or a copy of a document such as a birth certificate or court order. Leave to care for a spouse's serious health condition, such as recovery from childbirth, is different: your employer may require a medical certification for that.

Pay, health insurance and your job

FMLA leave is job-protected but unpaid. You may use employer-provided paid leave, such as vacation, PTO or parental leave, at the same time, and your employer may require you to.

While you are on FMLA leave, your employer must keep your group health coverage on the same terms as if you were working, including family coverage. When you return, you have the right to your same job or an equivalent one with the same pay, benefits and other terms.

On paid leave, the DOL's Women's Bureau states that there is currently no federal law providing or guaranteeing paid family and medical leave for private-sector workers. It also reports that thirteen states and the District of Columbia have laws creating paid family and medical leave programs. Check your state labor office, because these programs and their rules change.

If your leave is denied or discouraged

The FMLA prohibits employers from interfering with, restraining or denying your FMLA rights, and from retaliating against you for using them. The DOL lists examples such as refusing to authorize leave, discouraging you from taking it, or counting FMLA leave against you in attendance points.

One example in Fact Sheet #28Q describes a supervisor who denies a father's bonding leave by saying FMLA leave is only for women. The father files a complaint with the DOL's Wage and Hour Division, which secures the leave. If you believe your rights were violated, you can file a complaint with the Wage and Hour Division at 1-866-487-9243 or file a private lawsuit.

Parental leave can be stressful to arrange on top of everything else. If worry or low mood starts to take over, see our guide "Depression in New Fathers: Signs, Research and Getting Help." If you are in crisis, call or text 988.

Key takeaways

• The FMLA gives eligible employees of covered employers up to 12 workweeks of job-protected, unpaid leave in a 12-month period.
• Fathers and partners have the same right to bonding leave as mothers, and bonding leave must be used within 12 months of the birth or placement.
• Splitting bonding leave into blocks or a reduced schedule requires your employer's agreement, unless your baby has a serious health condition.
• Give at least 30 days' notice when you can, and follow your employer's usual leave procedures.
• There is no federal paid family leave law for private-sector workers, but some states have their own paid leave programs.

Sources

• U.S. Department of Labor, Wage and Hour Division, Fact Sheet #28: The Family and Medical Leave Act (revised March 2025)
• U.S. Department of Labor, Wage and Hour Division, Fact Sheet #28Q: Taking Leave from Work for the Birth, Placement, and Bonding with a Child under the FMLA (March 2025)
• U.S. Department of Labor, Wage and Hour Division, Fact Sheet #28E: Requesting Leave under the Family and Medical Leave Act
• U.S. Department of Labor, Women's Bureau, Paid Leave
• American Academy of Pediatrics (HealthyChildren.org), New Dads & Partners: How Your Involvement Matters (updated June 13, 2024)