Atlanta Employment Attorneys Blog
Welcoming a new child is often a joyous experience. It also can involve challenges that create a need to miss work. Taking an absence under the Family and Medical Leave Act may be an option for some. However, Employers and employees should note that not all pre-birth absences are covered by the FMLA. If you have questions about FMLA leave for pre-birth needs, you should consult a knowledgeable Atlanta FMLA lawyer to get sound and reliable answers.
The standard for pregnant moms is often relatively straightforward. If a pregnant employee is experiencing pregnancy-related medical symptoms that necessitate an absence from work (such as extreme morning sickness or doctor-mandated bedrest,) the mother-to-be may use FMLA leave for that absence. The employee may also use FMLA leave for prenatal medical care appointments.
For fathers-to-be, the situation is different and, therefore, the law is different. A recent FMLA interference and retaliation case from the 11th Circuit Court of Appeals illustrates some of the limitations regarding expectant dads and FMLA leave.
The father-to-be lived and worked in Florida; the mother resided in Connecticut. In late June, the father requested paternity leave starting on July 26th. The employer confirmed the father’s general eligibility but warned him that his eligibility for FMLA leave did not begin until the mother gave birth. The employer indicated that, if the father desired to start his leave before the child’s birth, he could “just use a sick or vacation day.”
Although the father had become aware by late July that the child would not arrive until around August 12th, he took the first week of August (the 2nd-6th) off, using his last four days of paid time off (PTO) and one sick day. However, the mother did not deliver on the 12th, but one week later on the 19th. The father used his last four sick days to cover August 9th-12th.
His absences on the 13th, 16th, 17th, and 18th occurred after he exhausted his leave and before the FMLA leave started. Those days triggered an assessment of eight points under the employer’s points-based attendance policy. The policy allowed the employer to terminate employees who accrued five points in any rolling 12-month period. During a conference call on August 20th, the father’s supervisor allegedly said, “Congratulations on the birth of your child…. Effective today, you’re terminated.”
The father sued, arguing that he was entitled to FMLA leave “in the days before his child’s birth,” and the employer’s refusal to extend his period of FMLA leave to include those weeks (and then fire him as a result of his absence) constituted illegal FMLA interference and retaliation.
Marital Status Can Play a Role in Eligibility
The courts rejected that argument. The 11th Circuit declared that the FMLA does not require employers to extend leave to “an expectant parent who is neither pregnant nor married to a pregnant spouse” during the period before the child arrives. The FMLA’s regulations do require employees to grant FMLA leave for bonding time with the newborn, but that period starts on the day of birth (and ends on the eve of the child’s first birthday.)
Certain situations do trigger pre-birth eligibility for fathers-to-be but the law limits those to circumstances where the mother-to-be is incapacitated or in need of care and the father-to-be is the expectant mother’s spouse.
Foster and Adoptive Fathers Can Take Pre-Birth Leave
The rules for adoptive and foster fathers are different. These fathers-to-be can take pre-birth leave to deal with events like mandatory counseling sessions, attorney consultations, court appearances, medical appointments, and (in the case of international adoptions) travel “to complete an adoption.”
This father’s predicament was challenging – he lived 1,200 miles away from the mother and had no way to pinpoint when the child be born. The only way to ensure that he was present for the birth was to travel early, which risked creating unexcused absences if the pregnancy ran long. (The mother allegedly carried the child for 42 weeks.) Nevertheless, the court concluded that the FMLA and its regulations were clear that the only eligibility triggers for fathers like this one were the birth of a child or the need to care for a child after birth, neither of which had occurred during the days for which the employer assessed attendance points. As a result, the employer could not be liable for interference or retaliation.
Whether you are an employer or an employee, misconstruing what the FMLA does (or does not) cover can have serious ramifications. The best way to avoid these pitfalls is to obtain a careful understanding before you make important decisions. The knowledgeable Atlanta FMLA interference attorneys at the law firm of Parks, Chesin & Walbert can help. Our team possesses an in-depth understanding of the law and the experience necessary to apply that law and give you clear advice and useful solutions. Contact us through this website or at 404-873-8048 to schedule a consultation today.