June 20, 2024
FMLA for an Unmarried Expectant Parent Who is Not the Birth Mother or Spouse?
I thank Heather Parsons, MBA, SHRM-CP, PHR, CWCS for sharing this case with me. It has an interesting spin and raises a good point, albeit indirectly.
Here’s the question posed by the court, “[D]oes the FMLA provide protected leave to an employee for the birth of a child before the child is born?” The court held the answer was “a qualified, ‘yes’.” In this case, however, the facts were “quite narrow,” and the answer was “No.”
Here’s the story. An employee was granted time off from work during the week of his child’s anticipated birth. The employee acknowledged his FMLA leave would not begin until the date of his child’s birth. The birth mother was his girlfriend. The child was not born until approximately two weeks later than anticipated. In the interim, the employee stayed off from work and exhausted his paid leave. While he used unpaid leave, he incurred “points” under the employer’s attendance policy, which he also acknowledged. By the time his child was born, he incurred enough points under the company’s policy to warrant termination and he was discharged. The employee alleged the employer interfered with his FMLA rights and retaliated against him for requesting FMLA leave.
Who wins? The employer. Prior to his child’s birth, the employee did not spend the time providing support for his child’s birth mother but “staying at a hotel…driving around some of the neighborhoods.” The court points to the language of the FMLA, “A spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated or if needed to care for her during her prenatal care…[the employee] is not a spouse under this provision, and he does not argue that he should be entitled to its benefits per se.” (emphasis added) Even if the employee was the spouse, in this case he produced no evidence that he provided care or support for the birth mother.
Tip 1. Review your FMLA policy with your company’s legal counsel. This employer’s policy read, “a father’s FMLA leave for the birth of his child begins on the day of his child’s birth.” As the court points out, if an employee is married to the birth mother and needs time to provide care for the birth mother, then that time off could qualify for FMLA leave. If the employee is an adoptive or foster parent, leave before the actual placement or adoption of a child could also be FMLA-covered if it is required for the placement for adoption or foster care to proceed.
Tip 2. Bear with me as I am about to use pronouns, gender- and sex-based terms. This case was brought by a male employee. The question posed by the court uses the pronoun “he.” The employer’s policy refers to fathers. But what about a female employee who is not married to her pregnant partner? If the same rule would apply, you may want to write your related policies (FMLA, parental leave) to cover more than “fathers.”
