Taking FMLA Leave for Pregnancy and Childbirth

The FMLA's family medical leave rules let you take time off during pregnancy and childbirth without losing your job.

By , J.D.
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Most employees plan to take some time off from work after having a child. And, even if you have a normal pregnancy without complications, you will likely need some time off during your pregnancy for medical reasons, such as prenatal check-ups or morning sickness. This article explains your right to take time off work for pregnancy and for parental leave after the baby is born.

Taking Family Medical Leave for Pregnancy or Parenting

The Family Medical Leave Act (FMLA) is a federal law that gives certain employees the right to take up to 12 weeks off work per year for specified health and caregiving reasons, including pregnancy disability and caring for a new child. FMLA leave is unpaid, but you can use your accrued paid leave (like sick time or vacation) during FMLA leave to get paid for at least some of that time.

While you're on FMLA leave, you can continue your group health benefits (although you'll have to pay your usual share of the cost, if any). When your leave ends, the FMLA gives you the right to return to your former position, with the restoration of all of your pay, benefits, and other job perks. (See Returning to Work After FMLA Leave to learn more.)

The FMLA applies to employers with 50 or more employees. Employees are eligible for leave if they have worked for the employer for at least a year, for at least 1,250 hours in the year before taking leave. Employees must also work at a job site where the employer has at least 50 employees within a 75-mile radius to use the FMLA. (Learn more about your right to take FMLA leave.)

If your employer denies you leave before or after childbirth, or refuses to give you your job back when your FMLA is over, you have the right to sue to take the leave, be "reinstated," and/or get money damages. For more information, see our article on what you can win in an FMLA case.

Using the FMLA for Pregnancy Disability

The FMLA defines incapacity due to pregnancy as a serious health condition that qualifies for leave. If you are unable to work or perform other regular, daily activities because of your pregnancy, you can take FMLA leave. If, for example, you have serious morning sickness or pregnancy-related migraines, your doctor orders you to spend part of your pregnancy on bed rest, or you have a pregnancy-related disability such as preeclampsia or gestational diabetes, the FMLA protects your right to take time off.

You can take as much of your FMLA leave as you need for pregnancy disability, before giving birth. If you have a brief bout of severe morning sickness but recover quickly, for example, you may need only a couple of days off during your pregnancy. On the other hand, if your doctor puts you on bed rest halfway through your seventh month of pregnancy, you might need to take six weeks of FMLA leave before giving birth. Your employer may require you to get a medical certification from your doctor stating that your leave is medically necessary.

The FMLA also covers prenatal care, even if you are not incapacitated. This means you can use FMLA leave for regular doctor visits during your pregnancy, including routine check-ups.

Once you have a child, you will likely still be incapacitated for a period of time, while you recover from childbirth. This is also a serious health condition, for which you may use the FMLA.

Parenting Leave Under the FMLA

Once you have a child and have recovered physically from childbirth, you may use the FMLA for parenting leave: caring for and bonding with your new child. This type of leave is available to both parents, whether they are mothers or fathers (and for biological, adopted, or foster children).

Using Your FMLA Leave for Different Reasons

You have the right to take up to 12 weeks of FMLA leave in a 12-month period. The 12-week limit applies to all types of FMLA leave. So, if you use three weeks of FMLA leave for pregnancy disability and another two weeks to recover from childbirth, you will have seven weeks left to use for parenting leave.

Even though you may use all of your FMLA leave for both purposes in one continuous block of time off, the reason for leave is important because the rules are a bit different for each. You use FMLA leave for a serious health condition (including pregnancy and childbirth) when you need it. You may use this type of leave intermittently—a little at a time, rather than all at once—if necessary. For example, if you are too ill to work for several mornings in a row, but feel better in the afternoons, you may use three hours of FMLA leave each morning and save the rest of your time off until you need it.

These rules are different for parenting leave. First, you may use parenting leave intermittently (for instance, by returning to work part-time for a while) only if your employer agrees. Second, you may take parenting leave any time during the first year of the baby's life. For example, if you used up only six weeks of FMLA leave for pregnancy and childbirth, then returned to work, you would still have six weeks of parental leave to use during that year.

If both you and your spouse work for the same employer, you may have to combine your parenting leave. Employers can require married spouses to take a combined total of 12 weeks of parenting leave. Note that this rule applies only to married couples (whether same-sex or opposite-sex), not to unmarried couples.

This rule applies only to parenting leave. Each spouse still has the remainder of his or her 12 weeks to use for most other types of FMLA leave. For example, if an employee takes two weeks of FMLA leave during her pregnancy, then two more weeks for childbirth, she has eight weeks of FMLA leave left for parenting leave. If she uses it all, her spouse may take only four weeks of FMLA leave for parenting. However, the spouse still has eight weeks of leave for other purposes, including his or her own serious health condition.

Other Leave Laws

In addition to the FMLA, other federal and state laws may give you the right to take time off for pregnancy and parenting:

  • The Pregnancy Discrimination Act, a federal law, requires employers to give the same time off to employees who are temporarily disabled by pregnancy as they give to employees with other temporary disabilities. For example, if your employer gives employees time off to recover from surgery, it must provide the same leave rights to pregnant employees.
  • State pregnancy disability laws. Some states, including California, give employees the right to take time off while they are unable to work due to pregnancy and childbirth.
  • State family and medical leave laws. Some states, including New Jersey, have their own FMLA-type laws, which give employees leave rights for pregnancy and parenting.
  • State temporary disability laws. A handful of states (California, Hawaii, New Jersey, New York, and Rhode Island) have insurance programs that pay employees a portion of their usual salary while they are temporarily unable to work because of a disability, including pregnancy and childbirth. A few states extend these rights to parental leave as well.

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