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Father Not Entitled to Prenatal FMLA Leave

by | Jul 25, 2024 |

In Tanner v. Stryker, the U.S. Court of Appeals for the Eleventh Circuit has ruled that an employee’s parental Family and Medical Leave Act (“FMLA”) rights do not begin until the actual birth of his child.

Law. Under the FMLA, employers with 50 or more employees must provide up to 12 weeks of unpaid leave during a 12-month period for an employee:

  • who has a serious health condition;
  • to care for, or bond with, a newborn or newly adopted child; or
  • to care for a spouse, child or parent with a serious health condition.

Facts.  An employee and his girlfriend were expecting a child when the girlfriend moved to another state before the birth of the child.  The employee requested FMLA paternity leave for the birth of his child and the leave was confirmed by the employer.  However, the employee took time off to be with his girlfriend before the anticipated time of birth.  After several delays in the expected date of birth, the employee had exhausted his other forms of leave but continued his absence from work despite being told that his FMLA leave would not begin until his child was actually born.

The employee alleged that, after the child was born, he received the following messages from his employer: “Congratulations on the birth of your child,” and “Effective today…you’re terminated from your position” for violation of the employer’s leave policies.

The employee sued for interference with his FMLA rights and for FMLA retaliation.  The employee asserted that the FMLA must be read to cover pre-birth leave; otherwise, its benefits “would be rendered a nullity.”  He said the “critical legal issue in this case is whether the FMLA provide[s] protected leave to an employee ‘for the birth of a child’ before the child is born” because DOL regulations provide that “[b]oth parents are entitled to FMLA leave for the birth of their child.”

The district court ruled in favor of the employer, explaining that the employee was not entitled to take FMLA leave for his absences before his child’s birth, saying that Congress excluded the possibility that the FMLA entitles employees to leave prior to the birth except in “certain specified circumstances” that were not present in this case.

Eleventh Circuit.  The Eleventh Circuit noted that circumstances may require that FMLA leave begin before the actual date of birth of a child.  For example, “The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, [or] for prenatal care”, and “[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.”

However, it agreed with the lower court that the employee’s claim of entitlement to pre-birth FMLA leave did not fit within any of the exceptions enumerated in the FMLA regulations. It therefore upheld the lower court’s ruling and dismissed the case.