FMLA for Pregnancy: Frequently Asked Questions

Paid “maternity leave”, the time a parent takes off from work following the birth or adoption of a child, is not usually given in the United States.  Although some companies offer paid time off for expecting mothers and their partners, most working women must rely on a combination of short-term disability, sick leave, vacation, personal days, and the unpaid leave under Family and Medical Leave Act to get the time off that they need after the birth of a child.

What is the Family and Medical Leave Act?

The Family and Medical Leave Act (FMLA) requires larger employers to provide up to 12 weeks of unpaid leave to employees who either have a serious health condition themselves, or must care for a seriously ill family member.

Can I use the FMLA for pregnancy leave?

Yes. The birth of a child, or complications relating to childbirth or pregnancy, would qualify under FMLA as a serious health condition.  Adoption, postpartum conditions, and parental leave for childcare may also qualify.

There are three different types of leave under FMLA for pregnancy:

  • Pregnancy leave. Expecting employees may use FMLA for pregnancy if complications present a serious health condition.  If a doctor determines that a period of leave is necessary, employees will be able to use FMLA for pregnancy.
  • Parental leave. Men and women may use FMLA leave as parental leave following the birth or adoption of a child, which can be taken at any time during the first year after the child is born or adopted.
  • Intermittent parental leave. New parents sometimes wish to 1) work part-time for a limited period; or 2) take some time off immediately following the birth or at a later date. FMLA for pregnancy is flexible — it may be taken intermittently if the employer approves it.

How does FMLA differ from disability leave? 

Patients may be covered under various short-term disability policies that cover pregnancy leave.  Short-term disability typically covers up to 6-8 weeks of leave (the period that is considered “medically necessary”) after the birth of a child.  Your physician will authorize 6 weeks of disability leave after a vaginal birth, and 8 weeks of disability leave following a cesarean delivery.   You may still take the full 12 weeks off that is provided under FMLA.

When do I qualify for FMLA leave?

Employees qualify for FMLA leave if they work for a company with more than 50 employees working within 75 miles of their workplace. Federal, state, and local government workers also qualify.   Employees must have worked at that company for at least 12 months. They also must have worked at least 1,250 hours during the previous 12 months.

Can I take paid leave under the FMLA for pregnancy?

Because they are not legally obligated to do so, few employers opt to provide paid pregnancy or parental leave.

With California leading the way in 2002, however, some states are beginning to give employees paid time off for maternity and paternity leave. Such leave is usually funded by state disability programs, however, and not by employers.

Can I be denied FMLA for pregnancy complications or delivery?

The Family and Medical Leave Act requires employers to provide at least 12 weeks of unpaid leave for expecting mothers and fathers after the birth of their child.  Employees must be able to return to their jobs, or similar jobs with the same salary, benefits and working conditions.

Except under specific conditions, employers may not deny a parent leave under the FMLA for pregnancy complications or delivery, as long as all necessary paperwork and FMLA certification are in order.

When can I take FMLA for pregnancy?

Employees can use FMLA leave for pregnancy complications at any time necessary during the duration of the pregnancy and for one year after the birth or adoption of the child. The FMLA requires employees to request non-emergency leave at least 30 days before taking it.

A total of 12 weeks per year is allowed under the FMLA.  Therefore if an employee uses some of their leave for pregnancy complications, this will be deducted from the amount allowed after delivery.  For example, if a patient takes off 2 weeks for a complication of pregnancy, that employee can use the remaining 10 weeks of unpaid leave after the baby’s birth. 

What about my partner?

Partners are also entitled to 12 weeks of leave after the birth of a child.   If a pregnant employee and her partner both work for the same firm, they are legally only entitled to a combined 12 weeks of leave.

Can I take FMLA leave for an adoption or placement of a foster child?

In most cases, yes.