FMLA Leave For Pregnancy Can Start Before The Baby Arrives

Q           Can a pregnant employee start their 12 workweeks of Family and Medical Leave Act (FMLA) leave before delivery, and if so, will this shorten their amount of postpartum leave?

Yes, if eligible, a pregnant employee may take their FMLA leave before the delivery of their child. For context, the FMLA is the federal law that provides eligible workers with 12 weeks of unpaid, job-protected leave for certain family and medical reasons, including pregnancy. This means an employee could use up to 12 weeks of FMLA leave to recover from the birth of a child or for any other serious health condition following childbirth.

Any period of incapacity experienced before childbirth will be considered a serious health condition eligible for FMLA leave as well.

Pregnant employees may find themselves unable to work before the birth of their child for a variety of reasons. For instance, an employee may need time off because they are experiencing severe morning sickness, or they might have to miss work to attend prenatal doctors’ appointments.

Even though such absences would occur before childbirth, employees are still able to use FMLA leave for this time away from work.

Overall, if an employee must take FMLA leave during their pregnancy, that time away will in fact be counted against their 12-week entitlement. In other words, any time taken before delivery will shorten the amount of FMLA leave that they can take postpartum.

With that being said, you will want to review state law and your own company policies when determining the amount of leave available to your employees. As for state law, states may afford employees with more expansive rights under their own family and medical leave laws.

If this is the case, and an employee qualifies for leave under the FMLA and state law, the FMLA regulations provide that the leave will count against the employee’s entitlement under both laws. As for company policies, you may also choose to offer your employees greater rights than those provided in the FMLA.

Finally, you should remember that pregnant workers may still be entitled to leave under the Pregnant Workers Fairness Act (PWFA) and the Americans with Disabilities Act (ADA). The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy.

Similarly, under the ADA, certain pregnancy-related conditions may qualify as a disability and require you to provide a reasonable workplace accommodation. Leave can be considered a reasonable accommodation under both of these laws even when FMLA leave has been exhausted or when the employee doesn’t qualify for such leave.

Bottom line. A pregnant employee may start their 12 weeks of FMLA leave at any time before their delivery. While this may shorten the amount of FMLA leave available, you should still remain mindful of supplemental laws and company policies that might entitle workers to additional time away from work.

Chase Riggs is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia, and can be reached at 304-933-8366 or chase.riggs@steptoe-johnson.com.

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