Employers are regularly having to grapple with how and when to give their employees leave when their employees are expecting a child. Unfortunately, the Family Medical Leave Act (FMLA) does not always provide the clearest answer as to when employers are obligated to provide employees with protected leave. However, a federal court in the Middle District of Florida has just decided a case, Tanner v. Stryker Corp., which held that the FMLA does not require employers to give their employees job protected leave before the birth of a child. Instead, employers would only be required to provide protected leave after the birth of the employee’s child or under limited exceptions.
The FMLA requires covered employers to provide unpaid, job protected leave to their employees to care for a new child, care for a seriously ill family member, or recover from a serious illness. In Tanner v. Stryker Corp., the expecting father wanted to take time off before the birth of his child to travel to his girlfriend’s hometown and prepare for the birth. However, he did not have enough PTO to cover this time period and instead asked to use his FMLA leave. His employer informed him that FMLA leave would only kick in after the birth of his child, but not before. The Plaintiff still took the time off and the company terminated him for his accrual of unexcused absences.
Mr. Tanner sued the company in federal court, alleging that Stryker Corp violated the FMLA by retaliating against him for taking leave and interfering with his right to take that leave. The Court began by analyzing whether the Plaintiff was entitled to leave under the FMLA for time off before the birth of his child. The Court held that employees are not entitled to take leave before the birth of their child under the FMLA unless their situation fits within the enumerated circumstances in the statute.
This decision provides some assurance that employers only need to give expecting parents FMLA leave once the birth actually occurs unless there is a special circumstance, such as a pregnancy complication that incapacitates the mother. That being said, this decision only applies to federal leave and does not apply to state and local leave laws that may have different statutory language. Employers with employees located in states with their own family and medical leave laws should be sure to check those laws before making a determination as to their obligations to give employees protected leave.