Pregnancy of employee’s child may trigger FMLA leave

The FMLA allows employees to take job-protected leave for the birth or adoption of their child. But can an employee legally take FMLA leave when his or her child is having a baby? In most situations, the answer is "no." But that’s not always the case.

Here’s why: The FMLA allows parents to take time off to care for their seriously ill dependent children. Pregnancy isn’t automatically a qualified "serious health condition," but complications can push it into that category.

When employees ask for time off due to a child’s pregnancy, you should first check whether the child is an adult. FMLA leave isn’t available for adult children unless the child is incapable of taking care of herself.

Next, ask for a medical certification from the health care provider of the pregnant dependent, just as you would for any other condition. Then allow FMLA leave for the time that the child is certified as having a "serious medical condition."

Recent case: Laurie Jordon was absent from May 2 to May 5 to care for her teenage daughter before and after her daughter gave birth. Jordon was fired for missing too much work.

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She sued, saying her employer interfered with her FMLA rights and retaliated against her for taking FMLA leave. Jordon argued that she should be able to earn FMLA leave for her daughter’s delivery.

The court acknowledged that pregnancy, "by itself," is not a "serious medical condition" qualifying an employee for leave. It said a parent can take FMLA leave for a minor child’s pregnancy only if the pregnancy presented complications that made it a serious health condition. (Jordon v. Texas Department of Aging and Disabilities Services, No. 9:05CV161, ED Texas, 2006)

Final tip: While you may have to give FMLA leave if an employee’s child suffers a "serious" condition during her pregnancy/delivery, there’s no entitlement for you to offer FMLA leave for a grandparent’s child-rearing.