The Family and Medical Leave Act provides parents with up to 12 weeks of unpaid, job-protected leave following the birth of a child. What if the non-birthing parent needs to travel to be there for the delivery? Is time spent preparing for the birth also protected under the FMLA? According to a new decision from the Eleventh Circuit Court of Appeals, the FMLA only provides protection for time spent away from work beginning with the child’s birth.

In Tanner v. Stryker Corp. of Michigan, the plaintiff’s former girlfriend relocated during her pregnancy. He requested leave to travel to attend the birth, beginning several days before the scheduled delivery date. The employer approved the leave, but advised the employee that FMLA leave would only begin as of the birth itself. The plaintiff used his remaining PTO for the time prior to the scheduled delivery date, but when that date was delayed, he exhausted his available time and had several unexcused absences. The employer terminated him following delivery based on these absences. He sued, claiming that the FMLA’s definition of birth of a child covers travel preceding the actual date of birth.

The Eleventh Circuit disagreed, affirming a grant of summary judgment for the defendant. The court explained that the FMLA and accompanying rules only provide parental leave for the birth of a child. They do not mention pre-birth absences. For married parents, the FMLA could require leave for the non-birthing parent if needed to provide companionship for medical needs leading up to the birth. However, these protections do not extend to non-married parents.

The court said that the plaintiff’s reading of the FMLA would remove all temporal limits from the childbirth entitlement, giving the non-birthing parent the right to leave work whenever deemed convenient, no matter how far in advance of the actual birth. While most employers would work with the parent to allow them to be prepared for and be present for the birth, the FMLA does not provide a legal entitlement to such pre-delivery absences.

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