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Maternity Leave with the FMLA

The FMLA requires covered employers to make as many as 12 weeks of unpaid, job-protected leave available to eligible employees for multiple reasons regarding pregnancy and children. Employees who are eligible because of pregnancy or birth of a child are entitled to FMLA leave, but can also be restricted in their leave, in the following situations:
  1. Both parents of a child, mother and father, are authorized to take an FMLA leave of absence for the birth of the child.

Beginning with the date of the child’s birth, both parents can take FMLA leave to be with the healthy newborn child during the 12-month segment. Basic care, bonding time and attachment phases are common reasons for parents to take the full 12 weeks of FMLA leave when a child is born.

At the end of the 12-month period, beginning on the birthday of the child, an employee's privilege to FMLA leave because of caring for the child expires. If the state law allows, or the employer will allow, bonding leave may be taken further than this 12-month period, but that specific leave of absence is different than, and does not qualify as, FMLA leave.

  1. If a husband and wife are both considered eligible for FMLA leave and are employed by the same covered employer, they could possibly be limited to a total of 12 combined weeks of leave during a 12-month period if the leave of absence is used for the birth of a child. Caring for the child after birth, placing the child in an adoption program or foster care, or caring for the child after placement are also reasons for using FMLA leave, which can also be limited when a husband and wife both work for the same employer.

If a husband and wife work for the same employer, even if one spouse is employed at a different site than the other is, the total weeks of FMLA leave for a child-related reason can be limited. However, if one spouse is ineligible for FMLA leave, then the other spouse would be granted the full 12 weeks of leave.

  1. The mother is eligible for FMLA leave for prenatal care, in the case where she is unable to perform tasks at work due to pregnancy, or for her own health condition that occurs subsequent to the birth of her child.

Some circumstances may require FMLA leave for an employee to start before the actual birthdate of the child. An expectant mother is permitted to take FMLA leave before the birth of her child for prenatal care or if her current situation makes her unable to work. The mother can leave for ineffectiveness due to pregnancy even though she does not obtain treatment from a healthcare source during the leave of absence, and even if the absence does not last for more than three successive calendar days. For example, an employee may not be able to go to work because of severe morning sickness brought on by her pregnancy.

Under the FMLA, the term “child” includes six designations, and doesn’t necessarily mean that a legal or biological relationship is required. The term encompasses all meanings, beginning with a biological or stepchild, an adopted child, foster child, a legal ward, or a child of someone who is standing in loco parentis, meaning the person assumes the responsibilities of a parent and provides either daily care or financial support for the child