FMLA pregnancy leave — everything employers and employees need to know

Even if your business does not offer parental leave, you are likely still required to provide time off for pregnant employees and new parents under the Family and Medical Leave Act. This important leave law is designed to offer job-protected leave to employees taking time off due to pregnancy, medical conditions, or other qualifying family events.

Handling pregnancy and family bonding leave is a bit different than managing other forms of FMLA leave, so human resources professionals and small business owners need to exercise care while overseeing pregnancy-related FMLA leave requests. The eligibility, scheduling, and paperwork requirements can vary from traditional FMLA processes, so we’ve provided an overview of how to handle FMLA pregnancy leave requests.

What is FMLA pregnancy leave?

The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take job-protected unpaid leave when they or an immediate family member need to seek medical care or are incapacitated by a serious health condition. Pregnancy can count as a serious health condition for FMLA leave purposes. The FMLA also provides a family bonding leave of absence after the birth, adoption, or foster placement of a child.

The FMLA grants employees up to twelve weeks of unpaid leave within a single 12-month period. This can be taken in one long leave period or as intermittent leave, depending on the situation and the employee’s needs. Employees who take time off under the FMLA are entitled to reinstatement to an equivalent role with equivalent pay and benefits at the end of their leave period. Health insurance is also typically continued during FMLA leave, which is important for new parents who need postpartum care and newborn medical care.

Who is eligible for FMLA pregnancy leave?

The FMLA has several eligibility requirements that all employees must meet to qualify for leave. There are also a few pregnancy-specific requirements and considerations.

General FMLA eligibility requirements

First, one must determine if an employer is covered by the FMLA. If an employee has not met the minimum service length or other eligibility requirements or your business is not a covered employer, they will not be eligible for leave of any sort under the FMLA.

The FMLA only applies to the following organizations and employers:

• Private-sector employers with 50 or more employees within a 75-mile radius. If employee counts fluctuate, they’ll need to have had 50 employees in 20 or more workweeks in the current or preceding calendar year.

• Public agencies. This includes local, state, or federal government agencies, regardless of the number of employees that they have.

• Public or private elementary or secondary school. There is no employee minimum for covered education institutions.

An employee at a covered employer is eligible for FMLA leave if they meet the following criteria:

• They must have worked for the covered employer for at least 12 months.

• They must have worked at least 1,250 hours for the employer within the previous 12-month period. This means that part-time employees may also be eligible.

• They must work at a location where the employer has at least 50 employees within 75 miles.

Pregnancy and parental leave eligibility

The pregnant person is eligible for leave during the pregnancy while dealing with pregnancy complications or seeking medical care related to their pregnancy. Though both parents can utilize family bonding leave.

The law is very clear that all genders may take family bonding leave under the FMLA. The father or non-pregnant partner qualified for 12 weeks of leave for family bonding after the birth of the child. Though spouses are considered family members for the purposes of FMLA caregiving leave, so they can also typically get time off to take their partner to medical appointments or to provide care during pregnancy complications.

Eligible spouses who work for the same employer are limited to a combined total of 12 weeks of leave in a 12-month period for family bonding. This limit does not apply to unmarried partners who work for the same employer, so in some circumstances, you may need to grant both parents the full amount of leave.

Types of pregnancy and family bonding leave covered by the FMLA

The FMLA actually covers a number of family leave types that extend beyond just pregnancy. Explore the four most common pregnancy and family bonding FMLA leave categories below.

Prenatal care and pregnancy complications

The FMLA covers time off for medical appointments related to pregnancy or pregnancy-related medical conditions. This includes prenatal care appointments and is typically taken as intermittent leave.

Under the FMLA, pregnancy-related illnesses can qualify as a serious health condition and allow for intermittent or extended FMLA leave.

Family bonding after the birth of a child

After childbirth, eligible employees can take time off to bond with their new child. This is typically taken as one 12 week period of leave following childbirth, but may be taken at any point within the first year of a child’s life. This leave is not limited to the birthing parent, though limitations may apply if both parents are married and work for the same employer.

Adoption

FMLA pregnancy and family bonding leave is not just for pregnant employees, but those adopting a child may also take time off to bond with their adopted child or attend required appointments. For FMLA purposes, adoption means legally and permanently assuming the responsibility of raising a child as one’s own.

Employees may also use FMLA leave before the actual adoption of a child if they need to miss work to attend required appointments or court hearings.

Covered absences include:

• Attending pre-adoption counseling sessions.

• Appearing in court.

• Consulting with the attorney or doctor representing the birth parent.

• Submitting to a physical examination.

• Traveling to another country to complete an adoption.

An employer is not required to allow intermittent leave after the child is adopted or placed, but they may choose to do so. An employee’s entitlement to FMLA leave for the placement of a child for adoption or foster care expires 12 months after the placement.

Foster placement

Foster placement is a temporary placement of a child in the home and is also covered under family bonding leave. For FMLA purposes, the Department of Labor defines foster care as 24-hour care for children in substitution for, and away from, their parents or guardians.

Foster placements may be short-term emergency solutions or more long-term arrangements. However, there is no minimum period required for a foster care placement to qualify for FMLA leave nor is permanent placement required for eligibility. Some foster parents are able and willing to take in last-minute emergency placements. In those circumstances, the employee will need to notify the employer as soon as possible of their need for FMLA leave but will not need to meet the 30-day notice requirement as the placement was not reasonably foreseeable.

Another thing to keep in mind for foster care placement is that the employee is entitled to 12 weeks of leave within a 12-month period for family bonding purposes, not 12 weeks per foster placement. Employees who foster may have several new placements throughout the year, but will still need to stay within the 12-week leave entitlement or use PTO for additional leave unless otherwise agreed upon.

Intermittent parental leave under the FMLA

Most forms of FMLA leave can be used as either intermittent or extended leave, but maternity and paternity leave is treated a bit differently under the FMLA. If a pregnant employee needs time off to receive prenatal care due to a period of incapacity related to pregnancy, they may use intermittent leave just as any employee taking time off for medical reasons would be allowed to.

However, employers do not have to grant intermittent leave for family bonding and may require employees to use the full 12 weeks at once. The exception to this is if the employee, their partner, or child has a medical condition that qualifies for FMLA intermittent leave as a serious health condition. Though many employers do allow new parents to use FMLA intermittent leave or reduced schedule leave.

Pregnancy FMLA leave notice and paperwork requirements

Like all forms of FMLA leave, pregnancy FMLA leave has a number of notice and documentation requirements that employees and employers will need to follow.

Initial notification

When foreseeable, employees are supposed to provide advanced notice to their employer at least 30 days before leave is expected to begin. In the case of leave for childbirth, the need for leave is typically foreseeable and the employee should provide notice, but employers will typically need to be flexible about the exact start date for leave as the employee may go into labor before their expected due date.

Eligibility notice

Within five business days of becoming aware of an employee’s pregnancy or potential eligibility for FMLA leave, the employer will need to provide the employee with an eligibility notice. This notice provides the employee with an overview of whether they meet the FMLA eligibility requirements discussed above related to length of service, hours worked, and whether they work for a covered worksite/employer. This is not an approval letter, but rather a confirmation of whether the basic FMLA eligibility requirements are met.

Medical certification

Medical certification is a key step in the FMLA process for employers, but it can look a bit different when administering pregnancy and family bonding leave. With most forms of FMLA leave, the employer can request that a medical certification form be completed by a healthcare provider verifying the employee’s need for leave. However, depending on the circumstances of a pregnant employee’s leave request, this may or may not be allowed.

Employees do not need medical certification if they are taking time off for family bonding. Instead, they will need to show documentation such as their child’s birth certificate or adoption/placement documentation to verify the family relationship and that they are still within the one-year eligibility period for family bonding.

However, medical certification can be requested if an employee requests FMLA leave for pregnancy or childbirth-related medical care. If applicable, employers can request that certification be provided and will need to give employees and their health providers at least 15 calendar days to complete and return the paperwork.

Designation notice

The final step in the FMLA certification process is to send out a designation notice to the employee letting them know whether their leave has been approved. This notice must be provided to the employee within five business days of receiving their medical certification or other verification documentation such as a newborn’s birth certificate.

Paid maternity leave vs FMLA pregnancy leave

The Family and Medical Leave Act isn’t the only pregnancy leave policy to consider. State laws may provide additional pregnancy-related leave options or expanded job protection, and your business might also have its own parental leave offerings that may be offered alongside FMLA pregnancy leave.

Several states such as Rhode Island, New York, and New Jersey have state laws granting paid family leave for pregnancy or family bonding. If a state has its own paid leave program for pregnant employees such as Pregnancy Disability Leave in California, that leave can often be taken concurrently with FMLA leave so that the employee can be compensated during their leave period.

Some states also have voluntary or required pregnancy disability insurance programs to offer short-term disability to pregnant employees or new parents. Be sure to check your local and state family and maternity leave laws to verify leave rights and requirements.

Other pregnancy laws and required accommodations

The FMLA is not the only key employment law to keep in mind when an employee is expecting. The first is the Pregnancy Discrimination Act. This act is an amendment to Title VII of the Civil Rights Act of 1964 and prohibits sex discrimination on the basis of pregnancy. This includes discrimination on the basis of current or past pregnancies, pregnancy-related disabilities, abortions, potential future pregnancies, and lactation.

In addition, the Pregnant Workers Fairness Act (PWFA) requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. The PWFA also prohibits employers from forcing an employee to take accommodations, absent certain conditions. Employers also may not require pregnant employees to take leave if there is another accommodation that does not cause an undue hardship that will allow them to continue doing their job.

The Americans With Disabilities Act and the FMLA also often overlap quite a bit when it comes to pregnancy leave and accommodation requirements. Pregnancy is not necessarily considered a disability in itself, but certain pregnancy-related conditions such as gestational diabetes, preeclampsia, and perinatal depression can qualify as disabilities under the ADA.

The ADA requires employers to provide reasonable accommodations to disabled employees which may include changes or adjustments in work requirements or additional unpaid time off. Conditions such as postpartum depression following pregnancy can also qualify as disabilities, potentially entitling the employee to additional ADA leave after their 12 weeks of FMLA leave has run out.