Q: Can a pregnant employee start her 14 weeks of Family and Medical Leave Act (FMLA) leave before delivery, and if so, will this shorten her amount of postpartum leave?
The FMLA guarantees 12 weeks of unpaid leave within a 12-month period. For pregnant employees taking leave to bond with their newborn child, this period usually begins on their date of delivery.
Pregnant employees may take FMLA leave before delivery for prenatal care or if they’re rendered incapacitated by their pregnancy. This use would count toward the 12-week maximum allowance each 12-month period. Whether this shortens an employee’s postpartum leave depends on the employer’s 12-month FMLA period.
Employers can designate their annual FMLA periods in four ways: a 12-month period aligned with the calendar year; a 12-month period set to renew on a fixed schedule, such as an employee’s hire date; a 12-month period commencing when an employee first uses leave; or a rolling 12-month period that looks backward from when an employee uses leave.
For the first two methods, the annual renewal date will determine whether pre-delivery leave reduces an employee’s postpartum leave. For example, an employee on a calendar-year renewal system could take pre-delivery leave in December, deliver in January, and receive a full 12 weeks of postpartum leave. For the latter two calculation methods, pre-delivery leave will reduce the postpartum leave that may be taken within 12 months.
Employees may also have additional leave protections under state and local laws.
Hannah L. Wurgaft is an attorney with Brann & Isaacson in Lewiston, Maine. She can be reached at 207-786-3566 or hwurgaft@brannlaw.com. Associate Skyler Bennett assisted in this article, as well.