The FMLA Does Have Limits…

In finding that an unmarried partner of a birth parent was not entitled to leave under the Family and Medical Leave Act prior to the child’s birth, the U.S. Court of Appeals for the Eleventh Circuit stated, “We have little doubt that some people and families who would benefit from FMLA leave are denied its benefits because its reach and scope is limited.”

In Tanner v. Stryker Corp. of Michigan, an employee was terminated for attendance violations after traveling to another state to be with his girlfriend in the weeks before she gave birth. He argued that his leave should have been protected under the FMLA, which provides up to 12 weeks of unpaid leave in a 12-month period for specific family and medical reasons, including “because of the birth of a son or daughter of the employee and in order to care for such son or daughter.”

The Eleventh Circuit noted that the FMLA does provide protected leave before a child is born – but only where an expectant mother requires it for prenatal care or because of her pregnancy-related inability to work, or where the employee must care for their pregnant spouse. Similarly, the FMLA allows adoptive and foster parents to take pre-placement leave where required for the placement to proceed, such as for mandatory counseling sessions, court appearances, meetings with attorneys, or adoption-related travel. What the FMLA does not provide, however, is pre-birth leave for a non-pregnant, unmarried individual to await their child’s birth.

But employers should recall that, while the FMLA only covers leave to care for immediate family members – meaning spouse, parent, and child under the age of 18 (unless disabled and unable to care for themselves) – there may be applicable state and local laws, including sick leave and paid family and medical leave, that may provide additional protections to care for extended family members, including domestic partners and household members.