May an employee with a newborn child use FMLA leave for child care issues?

Yes. The Family and Medical Leave Act (FMLA) in Regulation 825.120 allows an eligible employee to use 12 weeks of FMLA leave for the care of and bonding with a newborn, adopted or foster child for up to one year after birth or placement. There does not need to be a serious health condition or medical necessity for the absence; therefore, child care during this time would be an allowable reason to take FMLA leave. However, FMLA Regulation 825.202(b) stipulates that intermittent leave is only available for the care of a healthy new child with the employer's agreement. The following examples assume that the employee is eligible for FMLA leave and has not yet exhausted his or her FMLA leave entitlement. 

Scenario 1:

An employee's daycare provider closes due to holidays or illness, and the employee has no backup plan. The employee takes time off from work sporadically to care for the child, under the age of 1, and, when disciplined according to the company's attendance policy, the employee claims protection under the FMLA.

Because the leave is intermittent (not taken consecutively), the employee would not be covered under the FMLA unless the employer agreed to allow the intermittent leave and applied this practice consistently. The employee could be disciplined according to a clear and consistent attendance policy.

Scenario 2:

An employee's daycare provider closes permanently with no notice, and the employee has no backup plan. Although the employee took eight weeks off when the child was born four months ago, she now takes another three weeks off to care for her child, under the age of 1, due to difficulty in finding an available replacement provider.

A second request for leave to care for a newborn child who does not have a serious health condition within the first year would be considered intermittent leave since all of the leave was not taken consecutively and would require the employer's agreement. However, if the newborn child has a serious health condition, an eligible employee would have the right to take intermittent leave.