Q: A pregnant employee has gone on leave 4 weeks before the baby is going to be born. Do I have to give her all 12 FMLA weeks after it’s born, too? Sixteen weeks is a lot!
A: Eligible employees are entitled to take up to 12 workweeks of FMLA leave in a benefit year for qualifying reasons, regardless of any other leave they have taken during the year. An employee may take FMLA leave for their own serious health condition as well as to bond with a newborn baby. Being unable to work because of a pregnancy qualifies as a serious health condition.
If the pregnant employee is starting her leave now because she is unable to work, then her 12 weeks of FMLA starts now. Using 4 weeks of FMLA before the birth will reduce the amount of FMLA she has available for bonding purposes after the baby is born. In other words, she will have 4 weeks of FMLA before the birth and 8 weeks of FMLA after the birth, for a total of 12 weeks.
If you have a policy or promised to grant pregnancy leave without counting it against the employee’s 12-week FMLA entitlement, then you should follow that policy or promise. Keep in mind that employers are responsible for providing timely notices regarding an employee’s FMLA leave and the failure to do so might result in needing to extend the amount of FMLA leave.
Finally, it’s always a good idea to check state law. It’s possible she will have additional leaves available to her if she experiences a pregnancy-related disability.
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