Know the FMLA rules: You must allow intermittent leave before women give birth
Some employers mistakenly believe that women who want to use FMLA leave when they become pregnant can’t demand intermittent leave. That’s simply not true.
Managers may be confusing FMLA provisions that apply to the time leading up to the birth of a child with those that apply to the time after the child is born (or adopted).
It is true that you can insist mothers (or fathers) take all post-pregnancy leave in one full-time block. However, there is no such option while a woman is pregnant. Women may take intermittent FMLA leave for normal prenatal care and any “incapacity” during pregnancy.
That can include being approved to work part-time for the duration of gestation.
Recent case: Erika LaBrousse worked for Caribbean Airmail as a compliance analyst. When she became pregnant, her doctor gave her a note that stated her pregnancy was considered “high risk” and she would need accommodations, including a reduced work schedule of no more than 25 hours per week. The same day, she submitted her application for maternity leave and FMLA leave to begin after she gave birth.
Instead of honoring her request for a reduced work schedule, the company told LaBrousse that no such positions were available. It said she could either take her FMLA leave in a block beginning immediately or lose her job.
She sued, alleging interference with her right to take intermittent FMLA leave during pregnancy.
The company argued that she wasn’t entitled to intermittent leave and that it could deny her request under the law.
The court disagreed. It said employers can force employees to take their post-birth leave full time. However, employees are allowed to take time off intermittently before birth. Thus, LaBrousse was entitled to a part-time schedule. (LaBrousse v. Caribbean Airmail, No. 09-23529, SD FL, 2011)
The FMLA pre- and post-birth
- Allow time off for regular prenatal visits. Remember that these may increase if a woman has a difficult or high-risk pregnancy.
- Accommodate requests for reduced schedules on a doctor’s recommendation. If you doubt the need, ask for a second medical opinion just as you would for any other claimed serious health condition. You must pay for that evaluation. If the two don’t agree, you can insist on a third, tie-breaking opinion.
- Inform the employee whether you will allow intermittent leave after she gives birth or whether she needs to take full-time FMLA leave.
- If the employee wants to return before being cleared for full-time work by her doctor, she may be eligible for a reduced schedule—if the reason is her own serious health condition. That’s different from wanting a reduced schedule to care for a healthy child.
