Pregnancy and the FMLA

FMLA serious health condition

Pregnancy is an FMLA serious health condition. For time off for pregnancy, delivery, and recovery to fall under the FMLA, however, the employee (or a family member) must be incapacitated, which means they are unable to work, attend school, or perform other regular daily activities due to the serious health condition, treatment thereof, or recovery therefrom. An employee could, for example, be incapacitated by severe morning sickness.

Incapacity also includes time off for prenatal appointments. Any time an employee (or family member) takes leave because they are incapacitated, employers must count that leave as FMLA leave. Employers may not delay designating FMLA leave when the leave is taken for a qualifying reason.

Spouses may take FMLA leave to care for their spouse who is pregnant, for the delivery, and for recovery. They may also take FMLA leave for bonding.

Beyond recovery

After recovery, employees can take FMLA leave to bond with their child, as long as they have some FMLA leave left. Employees must take the bonding leave within 12 months of the birth.

In addition, eligible employees are entitled to 12 workweeks of leave during each new FMLA leave year. As a result, depending on the leave year employers choose, an employee may be entitled to more than 12 weeks of leave for bonding with his or her child during consecutive 12-month leave years.

If, for example, an employer uses the 12-month period from July 1 through June 30 for its FMLA leave year. Rebekah has a baby on April 29th and uses FMLA leave for 8 weeks from her child's birth through June 30th. During the next leave year that begins July 1st, Rebekah is eligible for FMLA leave and remains on maternity leave for another 8 workweeks of FMLA leave and reaches an agreement with her employer to take another 4 workweeks of reduced schedule leave for bonding with her child before her child's first birthday.

Employees are not automatically entitled to FMLA bonding leave on an intermittent or reduced schedule basis. They may do so only if the employer agrees.

Other laws

The FMLA isn’t the only law that can apply to pregnancy, delivery, and recovery. The Federal Pregnant Workers Fairness Act requires employers with 15 or more employees to provide reasonable accommodations for an employee’s limitation related to pregnancy, delivery, or related medical conditions. While the accommodation of last resort, leave can be reasonable. Such leave can also run concurrently with FMLA leave.

State leave laws can apply to a particular situation. Such laws might apply to more employees than the FMLA, provide paid leave, and provide more than 12 weeks of leave.

Key to remember: Employers must know when to designate leave as FMLA leave for pregnancy, delivery, recovery, and bonding.