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The Family and Medical Leave Act (“FMLA”) may be available for pregnant and new parent workers who need leave from work for prenatal care, complications due to pregnancy, child birth, and post-birth bonding time. Important issues arise concerning FMLA coverage (whether the statute applies to a particular employee), notice requirements, and the benefits and protections of the FMLA as it relates to pregnant and new parent workers.

FMLA Coverage

To be protected by FMLA, an employee must have worked for the employer for at least 12 or more months and worked at least 1,250 hours during the 12 months immediately preceding the commencement of the leave. The 12-month employment requirement need not be consecutive provided that any continuous break in service be no longer than 7 years. The only time where continuous service breaks longer than 7 years will still be eligible for possible FMLA coverage is if the employee is fulfilling certain military service obligations or is subject to a specific type of collective bargaining agreement.

Furthermore, an employee must show that her employer employs 50 or more employees within 75 miles of the employee’s worksite. Telecommuting employees are covered under the FMLA if the office to which they are assigned as their “home base,” from which their work is assigned, or to which they report has 50 or more employees working within 75 miles of its location.

A covered private sector employer is one which employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Public agencies and public and private elementary and secondary schools are covered without regard to the number of employees employed. Covered employers may include, as the circumstances warrant, individual persons who act directly or indirectly in the interest of a covered employer in relation to an employee, joint employers, integrated employers, and successor employers. Sometimes it is not readily apparent that an employer has 50 or more employees, however, an experienced FMLA lawyer may be able to utilize various legal theories to determine the necessary number.

FMLA leave relating to pregnancy, child birth, care for newborns, and prenatal conditions

An eligible employee is entitled to a total of 12 workweeks of unpaid leave during any 12 month period for, among other reasons, the birth of a son or daughter of the employee and in order to care for such son or daughter. Leave to attend the birth and for care of a newborn is available to both male and female employees. Both parents are entitled to post-birth leave, regardless of the newborn’s health, which is referred to as bonding time. The entitlement to leave for birth or bonding expires twelve months after the birth. There are special rules for parents who both work for the same employer regarding the total amount of combined leave that may be taken.

Note that the FMLA regulations were amended in 2015 which essentially granted same sex spouses the same rights as opposite sex spouses for all purposes under the FMLA including issues pertaining to leave for post-birth bonding.

Also, an employee may take leave -- if any leave entitlement remains -- to care for the newborn child beyond the child’s first birthday if that child has a serious health condition.

Before the birth, the pregnant employee may take leave for incapacity due to pregnancy or for prenatal care. Incapacity is generally defined as the inability to work, attend school, or perform other daily activities due to a serious health condition, treatment therefore, or recovery therefrom. A serious health condition is generally defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Inpatient care means an overnight stay in a hospital, hospice, or residential medical facility including any period of incapacity or any subsequent treatment in connection with such inpatient care. Continuing treatment by a health care provider has five different lengthy definitions depending on the nature of the condition.

If an eligible pregnant employee’s pre-birth absence from work is caused by pregnancy-related incapacity rendering her unable to work, it is protected FMLA leave even if the employee does not receive treatment from a health care provider and even if the absence does not last for more than three consecutive calendar days. Morning sickness, for example, may be considered as a pregnancy-related incapacity even if there was no treatment from a health care provider. As such, the ordinary requirements to establish a serious health condition (i.e.; either showing inpatient care or continuing treatment by a health care provider) are suspended for pre-birth leave needs due to pregnancy-related incapacity of any duration and regardless of whether the expectant mother sought or obtained treatment.

An FMLA eligible spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated, or if needed to care for her during her prenatal care, or if needed to care for her following the birth of a child if she has a serious health condition.

Both parents are entitled to FMLA leave if needed to care for a child with a serious health condition if certain requirements are met. Thus, the parents may each take 12 weeks of FMLA leave if needed to care for the newborn child with a serious health condition, even if both are employed by the same employer, provided they have not exhausted their entitlements during the applicable 12-month FMLA leave period.

Intermittent and reduced schedule leave may be available under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time while reduced schedule leave is a leave schedule that reduces an employee’s usual number of working hours per workweek or workday. An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees.

For example, an employer and employee may agree to a part-time work schedule after the birth of a healthy newborn. If the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave.

The employer’s agreement is not required for intermittent or reduced schedule leave required by the serious health condition of the mother or newborn child if medically necessary. Moreover, expectant mothers may take intermittent leave for prenatal examinations or for their own pregnancy related incapacitating conditions such as morning sickness.

The taking of unpaid FMLA leave for the birth of and care for a newborn or to care for a newborn with a serious health condition may, at either the employee’s or employer’s option (no agreement is necessary), concurrently utilize any accrued but unused paid time off such as vacation or sick time. If the employer elects to require the employee to use accrued but unused paid time off, it must notify the employee.

If you have any questions about your FMLA leave rights call Orlando employment and discrimination attorney Travis R. Hollifield at (407) 599-9590 or email us at

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