Taking FMLA Leave for Pregnancy and Childbirth

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'll likely need some time off during your pregnancy for medical reasons, such as prenatal check-ups or morning sickness.

If you work for a covered employer, you can take the time away from work that you need for pregnancy and childbirth under a federal law called the Family and Medical Leave Act (FMLA)—up to 12 weeks a year.

This article explains who's covered by the FMLA, when you're entitled to take leave, and how the law protects your right to take time off work for pregnancy and for parental leave after your baby's born.

Taking Family Medical Leave for Pregnancy or Parenting

The Family Medical Leave Act (FMLA) is a federal law that gives employees the right to take time off for health and caregiving reasons, including pregnancy disability and caring for a new child.

Using the FMLA for Pregnancy Leave and Parenting Leave

The FMLA gives eligible employees who work for covered employers the right to take up to 12 weeks off work per year for childbirth, maternity, paternity, or parenting leave. (29 U.S.C. § 2612(1).) But the law doesn't apply to all employees or every employer.

The FMLA only applies to employers with 50 or more employees. And you're only eligible for leave if you've worked for a covered employer:

• at least a year
• at least 1,250 hours in the year before taking leave, and
• at a job site where your employer has at least 50 employees within a 75-mile radius.

(Learn more about your right to take FMLA leave.)

FMLA leave is unpaid, but you can use your accrued paid leave (like sick time or vacation) during FMLA leave. That would allow you to get paid for at least some of your time off.

While you're on FMLA leave, you can continue your group health benefits if you 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.)

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 monetary 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're unable to work or perform other regular, daily activities because of your pregnancy, you can take FMLA leave.

For example, the FMLA protects your right to take time off if you have any of the following problems:

• serious morning sickness
• pregnancy-related migraines
• gestational diabetes
• pregnancy complications requiring doctor-ordered bed rest, or
• a pregnancy-related disability such as preeclampsia.

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 might 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 use about six weeks of FMLA leave before giving birth. Your employer can 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 aren't incapacitated. That means you can use FMLA leave for regular doctor visits during your pregnancy, including routine check-ups. You must give your employer as much notice as possible and use your employer's normal call-in procedures when you need to miss work.

Once you have your baby, you'll likely still need some time to recover from childbirth. This recovery time also qualifies as a serious health condition under FMLA rules—meaning you can use FMLA leave while you recover.

Using the FMLA for Parenting Leave

Once you've recovered physically from childbirth, you can use your remaining FMLA leave for parenting, so you can care for and bond with your new child.

This type of leave is available to all new parents, regardless of gender. It applies whether the child is your biological, adopted, or foster child. But it must be taken within the first year after your child's birth, adoption, or foster placement. (29 U.S.C. § 2612(2).)

Reasons to Take Early Maternity Leave

The FMLA allows you to start your maternity leave as soon as your doctor agrees you should no longer work. The law allows you to begin FMLA pregnancy leave early in situations like the following:

• You're suffering from exhaustion from standing for long periods or other strenuous work activities.
• Your doctor recommends reduced job duties at work (such as no heavy lifting or not being around toxic materials or radiation), but your employer can't accommodate you.
• Your pregnancy is high risk due to:
• an incompetent cervix
• pre-eclampsia
• placenta previa, or
• having twins.
• Your doctor says you should spend the remainder of your pregnancy on bed rest.

Timing Pregnancy and Parenting FMLA Leave

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 3 weeks of FMLA leave for pregnancy disability, and another 4 weeks to recover from childbirth, you'll have 5 weeks left to use for parenting leave or other qualifying leave.

Even though you can 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 can use FMLA leave for a serious health condition (including pregnancy and childbirth) when you need it. You have the right to use this type of leave intermittently—a little at a time, rather than all at once—if necessary. For example, if you're too sick to work in the morning, but you feel better in the afternoon, you can use a few hours of FMLA leave each morning and save the rest until you need it.

The rules are different for parenting leave:

• You can only use parenting leave intermittently (for instance, by returning to work part-time for a while) if your employer agrees.
• You can take parenting leave any time during the first year after the baby's birth. For example, if you used up only 6 weeks of FMLA leave for pregnancy and childbirth, then returned to work, you‘d still have 6 weeks of parental leave to use during that year.

When Both Spouses Work for the Same Company

If both you and your spouse work for the same employer, you might have to combine your parenting leave. The FMLA allows employers to require married spouses to take a combined total of 12 weeks of parenting leave. (29 C.F.R. § 825.120(a)(3).)

Note that this rule applies only to married couples—whether same-sex or opposite-sex—but not to unmarried couples. And it applies only to parenting leave. So, each spouse still has the remainder of their 12 weeks to use for other types of FMLA leave.

What if You Don't Qualify for FMLA Leave for Pregnancy?

What happens if your employer is too small to be covered by the FMLA, or you haven't worked for your employer long enough to be eligible for FMLA pregnancy or parenting leave? Other federal and state laws might 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're unable to work due to pregnancy and childbirth.
• State family and medical leave laws. Some states, including California and New Jersey, have their own FMLA-type laws, which give employees leave rights for pregnancy and parenting.
• State temporary disability laws. Many states now offer paid leave or temporary‑disability programs that help new parents. States such as California, New York, New Jersey, Rhode Island, and others provide insurance or benefit programs that replace part of your salary if you're temporarily unable to work because of pregnancy or childbirth. In many of those states, separate paid‑parental or bonding leave is also available. But only some of those programs protect your job when you're ready to return.

How to Request FMLA Leave for Pregnancy

Requesting FMLA pregnancy leave is a straightforward process—as long as you follow the employee notice requirements. (29 C.F.R. § 825.302.)

• Give advance notice when possible. If you expect to start maternity leave around your due date, notify your employer at least 30 days in advance.
• Provide enough information. You don't have to specifically say "I want FMLA leave," but you do need to give enough detail so your employer understands you might need leave for a qualifying reason, such as:
• pregnancy complications
• childbirth and recovery, or
• bonding with your new baby
• Complete all required paperwork and medical certification. Your employer can ask for medical certification from your health care provider confirming your pregnancy‑related condition and anticipated leave dates.
• Don't ignore deadlines. If your employer requests certification, you generally have 15 calendar days to provide it. If you can't meet that deadline, let the employer know as soon as possible and explain when you expect to submit it.
• Follow your employer's usual leave procedures. Whether you're taking FMLA pregnancy leave or parental leave to bond with your new baby, follow your workplace's normal rules for calling off work or submitting leave-request forms.

Learn more about the notice and paperwork requirements for FMLA leave.