Family Medical Leave Act and Baby in NICU

I am kind of confused as to what you are asking. FMLA is 90 days per 12 month period. It is unpaid and only firms with, I believe more than 50 employees, are subject to it.

So she can take 12 weeks, unpaid, end of discussion. If she takes 12 weeks, one day, they can legally fire her. That is all FMLA is, it is a law to protect employees from being replaced because they needed to take off to take care of their family.

Oh and FMLA is federal, it does not vary state to state. Some states offer other things that run parallel to FMLA but it isn't FMLA.

This is actually part of my job-FMLA case management.
You have some good advice here, but let me expand a bit for you.
First, she is only eligible if her company has 50+ employees and she has worked full time for the past year.
Second, FMLA can cover a continuous leave or an intermittent leave. Her baby's stay in NICU might necessitate either one. The baby's treating doctor needs to fill out the paperwork.
She needs to contact her company's HR department ASAP and send something in writing (even an email) that she is requesting FMLA. Her company, by law, has only a couple of days to respond and send paperwork, or her leave will be covered regardless.
She will get 12 unpaid weeks of time off for the calendar year the company uses. This may be a rolling calendar, or a Jan-Dec calendar. These days off can be spread out, or used continuously, depending on how her baby's MD writes up the FMLA. She should have also applied to use her maternity leave, or short-term disability, for the 8 weeks PP. Did she do this already, or is she not eligible? There are definitely things she needs to talk to her HR dept about. She needs to request STD and FMLA papers, and she needs to do it quickly, before the time to request these things expires.
Let me know if I can help further. I have a wealth of info about this, but your question leaves too many unknowns for me to keep typing.

Contact your local state employment office or labor relations office. It may be different in all states but the state office will be able to help you get through the paper work and answer your questions.

Mom should have 6 weeks maternity leave to recover from the birth. But since the baby is in the NICU she should be able to get FMLA. You do need to be firm with some employers and ask where to send the info and to who. I talked to a young lady about a year ago who was told by her employer she had to return to work, or lose her job, 3 weeks after giving birth because the paper work was sent to the wrong person and had not been approved. If possible hand deliver the paper work to the person who is to receive it. If the company is making a fuss about her taking a leave make this person sign a document or take a picture of them with the paper work to prove they received it.

As Penny N and Julie stated, the fact that she gave birth is enough to give both of them 12 weeks of unpaid leave in a year. How those weeks are used depends on a lot of things and for that you'd really need to talk to HR or the DOL. If HR is not responding, your brother can call the DOL directly using the info below:

"For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4-USWAGE (1-866-487-9243)."

It might also make sense for your brother to sign and notarize a document allowing you to speak to his HR and benefits staff on his behalf. I work in benefits administration and we can't talk to people who are not the employee unless we have documented permission. That way, you can make the multiple phone calls and sit on hold and talk to 400 different people for him while he tends to his wife and baby.

Make sure the baby has been added to their insurance too. That's an administrative thing that's critically important that you can take off his hands.

Just a thought to keep in mind. Right now baby is being watched and taken care of 24/7. If her leave is all used while baby is in hospital, what will she do when baby comes home. Bring baby home on Sat and return to work on Monday? Is it possible for her to go back to work, even part time, and save her family medical leave for when baby comes home?

I would say yes. NICU is Neonatal Intensive Care Unit. If an immediate family member were in the ICU it would be considered "a serious medical condition", would it not? It's the same thing, except it is specific to preterm or near term infants. It's still intensive care.

I think what you are intending to ask is probably who should be notified and what documentation needs to be provided. For that, I would contact the HR department. IF they should say that it doesn't meet the definition of "serious health condition" then I would follow up as ReverendRuby suggested.

But if you are simply trying to determine whether the criteria has been met, ask HR if "intensive care" hospitalization meets the threshold.

I would certainly think so-good luck!

Yes. Any hospital stay nicu or not is a serious health condition. So nicu? Without question.