FMLA For Expectant Fathers: When Leave Does – and Doesn’t – Apply

When are expectant fathers entitled to FMLA leave? And what exactly are they entitled to? What about FMLA leave for new fathers?

A new ruling from the Eleventh Circuit provides valuable insight that can be applied when assessing FMLA for dads — both new and soon-to-be fathers.

New Hire’s an Expectant Father

In November 2020, Tristan Tanner was hired as a non-exempt employee at Stryker Corporation, a medical supply company. As a materials handler, Tanner was responsible for delivering and retrieving Stryker’s equipment to and from hospitals and surgical centers.

The following month, Tanner learned his girlfriend was pregnant and notified the company that the child was due in early August 2021. He had questions about:

• the company’s paternity leave policy, and
• FMLA for fathers of newborns.

Company’s Applicable Policies

1. Attendance Policy

Under the company’s attendance policy, non-exempt employees accrued two points for being “absent from work without an available sick day.” As a general rule, employees who violated the policy received a first written warning for accruing two points and a second written warning for accruing four points. The warnings were discretionary, the policy indicated. Employees who accumulated five points were subject to termination. The company used Workday, a common HR platform, to track absences. Employees had access to Workday.

2. FMLA Policy

The company also had a Family and Medical Leave Act (FMLA) policy. Relevant here, the policy provides employees with 12 weeks of unpaid leave following the birth of a child. Under the policy, “a father’s FMLA leave for the birth of his child begins on the day of his child’s birth.” If a father was absent from work prior to the birth, the company required the father to use PTO or sick days “to cover these absences.”

3. Parental Leave Policy

In addition, the company had a parental leave policy that provided six weeks of paid leave.  Under it, an employee’s leave for the birth of a child begins when the “child is born and once the employee submits documentary proof of the child’s birth.”

All three policies are outlined in the employee handbook. Tanner received a copy of the handbook when he was hired and received training on various company policies, including its attendance policy, and the use of the Workday platform.

Can Expectant Fathers Take FMLA Leave?

In mid-June of 2021, Tanner was assigned an HR Leave Specialist. She confirmed he was eligible for both parental and FMLA leave. She provided Tanner with a “Notice of Eligibility & Rights and Responsibilities under the FMLA and a request for leave form,” which needed to be completed and returned by July 1.

On July 5, Tanner emailed the HR director and his Leave Specialist to say his “anticipated start date for his leave” was July 26. The email also said he expected his child to be born sometime during “the last week of July/first week of August” and that he would travel to Connecticut, where his girlfriend lived, for the birth.

Two days later, on July 7, Tanner submitted his leave request to the Leave Specialist, indicating that his anticipated leave dates were from July 26 to October 6.

On July 8, the HR Leave Specialist approved Tanner’s leave request and sent him a designation notice that contained the following warning: “The FMLA requires that you notify us as soon as practicable if the dates of scheduled leave change, are extended, or were initially unknown.”

Also on July 8, Tanner said he planned to leave for Connecticut on July 27. He asked “how he would be paid” if the child’s birth was delayed. In an email, the HR Leave Specialist reiterated that his FMLA “benefits apply once the baby arrives” and that if he planned to take time off before the birth, then he was “required to just use a sick or vacation day.” Tanner confirmed that he understood.

On July 16, the HR Leave Specialist again reminded Tanner his leave “would begin once his daughter was born.”

Dad-To-Be Racked Up Absences Before the Birth

Tanner then racked up absences prior to the birth of his child. On July 14, he took a half-day to receive a COVID-19 vaccine. The following day, he used a sick day to recover from symptoms associated with the inoculation.

On July 20, Tanner told his supervisor he expected his child to be born on Aug. 12.

But on July 30, Tanner told his supervisor that he would be absent the week of Aug. 2 “because his daughter was expected to be born any day that week.” During that conversation, Tanner told the supervisor that he’d have to use PTO and sick days until the birth because “paternity leave only starts on the actual birth day.” He also acknowledged that he only had four personal days left.

Tanner left for Connecticut on Aug. 8. However, he was absent from work beginning on Aug. 2, during which time he was “planning, packing and preparing for the trip.”

He exhausted his personal time on Aug. 5. He then used his sick time and exhausted it on Aug. 12. Because he had no remaining personal or sick time, he accrued points under the attendance policy for absences on Aug. 13, 16, 17 and 18. He did not receive warnings for accruing the points.

In an email exchange dated Aug. 16, Tanner asked the HR director for permission to go over the limit on his absences without penalties. In reply, the HR director said if he didn’t have the time to cover his absences, then he’d accrue points. To this, Tanner replied that he’d “just take points then as nothing else I can do.”

Tanner’s daughter was born on Aug. 19.

Termination Leads to FMLA Lawsuit

By Aug. 18, Tanner had accumulated eight points – three more than the five points that could result in termination under the company’s attendance policy. The unexcused absences were recorded in Workday.

During a phone call on Aug. 20, Tanner was fired for excessive unexcused absences.

Tanner filed a lawsuit, alleging that he was fired while on FMLA, asserting claims of FMLA interference and retaliation. He argued that “FMLA entitles an employee to take leave prior to the birth of his child to ensure the employee can actually be present for the birth.”

He insisted that it was “common sense” that FMLA leave “must include some period of time before the day of the birth” or “parents would miss the birth and lose the very benefit that the FMLA provides.”

The company filed a motion for summary judgment, arguing that Congress “anticipated situations” where employees would be entitled to FMLA leave prior to the birth, but Tanner didn’t qualify for any of them.

A federal court in Florida sided with the company, and Tanner appealed to the Eleventh Circuit.

The FMLA and Parental Rights: A Closer Look

First things first: Let’s look at what the FMLA text actually says.

As you well know, the FMLA entitles employees to leave: 1) for the birth of a child, and 2) for bonding time with the child “during the 12-month period beginning on the date of birth.”

Moreover, Congress outlined specific circumstances that “may require FMLA leave [to] begin before the actual date of birth of a child.” They are:

• A pregnant employee is eligible for FMLA leave before the birth of the child “for prenatal care or if her condition makes her unable to work,” and
• An employee is entitled to FMLA leave if the time is “needed to care for a pregnant spouse who is incapacitated or if needed to care for her during her prenatal care.”

In addition, Congress addressed FMLA leaves prior to birth for employees who are adopting children, the court pointed out. Under the FMLA, employees “may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed.”

Moreover, Congress “even specifies that leave for travel prior to adoption is appropriate” in some cases, the court noted. Specifically, employees who are adopting can take FMLA to “travel to another country to complete an adoption.”

The lower court noted that Congress “contemplated circumstances in which FMLA leave should begin prior to birth” and did not include “the circumstance of an employee traveling to the location of his child’s birth.”

Ultimately, it held Tanner’s situation did “not fit within any of the circumstances Congress considered worthy of FMLA leave prior to the birth of a child.”

The court acknowledged the difficulty Tanner faced while trying to predict when to start his FMLA leave, but it ultimately concluded that he “was not entitled to take FMLA leave prior to the birth.”

On appeal, the Eleventh Circuit agreed, pointing out that “the FMLA’s text plainly provides that ‘the birth of’ a child triggers leave and job protection.”

As such, “the days Tanner spent awaiting the birth of his child in Connecticut—the days for which he accrued occurrence points for unexcused absences—were not FMLA-eligible,” the Eleventh Circuit determined.

This meant Tanner had no direct evidence to support his claim that his termination violated the FMLA’s job protections.

FMLA Retaliation?

When an employee alleges FMLA retaliation without direct evidence, courts apply the familiar McDonnell Douglas burden-shifting framework.

Here, Tanner had to plausibly allege that he engaged in a protected activity, he suffered an adverse employment action, and the adverse action was “causally related to the protected activity.”

He alleged the company fired him one day after his FMLA leave started. The “close temporal proximity” between his leave date and termination date could convince a reasonable jury that the company’s decision might’ve been motivated by his FMLA leave, Tanner alleged.

Because Tanner stated a prima facie case, then the burden shifted to the company to state a legitimate, nondiscriminatory reason for its decision.

The company said it fired Tanner for “violating the attendance policy” by being absent “after he had exhausted his personal time off and sick leave.”

That was a valid reason, the lower court found, as the “FMLA does not insulate an employee from being terminated” for valid business reasons. Here, the court said the company showed it fired Tanner “after repeated unexcused absences in violation of the attendance policy.”

Because the company stated a legitimate business reason for its decision, the burden shifted back to Tanner to show pretext. Among other things, he argued that he was not given the exact warnings outlined in the attendance policy.

The lower court rejected Tanner’s argument, noting that he had been made aware of the policy and that he had received repeated warnings that he would “accrue points” if he was absent after exhausting his PTO. The court also pointed out that Tanner could track his absences through Workday. Finally, the policy indicated that the warnings were discretionary.

In the court’s view, the company’s “failure to give the warnings is not evidence of pretext.” Thus, it granted the company’s motion for judgment on the retaliation claim.

On appeal, Tanner argued that the short timespan between his leave date and termination date was enough to show pretext.

In some cases, close temporal proximity between protected conduct and an adverse employment action can establish pretext if it is coupled with other evidence to support the allegations, the Eleventh Circuit explained. But alone, the short timespan wasn’t enough to demonstrate pretext.

Thus, regarding the retaliation claim, the Eleventh Circuit affirmed the lower court’s ruling in the company’s favor.

Why FMLA Interference Claim Failed

When an employee’s FMLA interference claim is based on termination, a company can “affirmatively defend against the claim by establishing that it would have terminated the employee regardless of [his] request for or use of FMLA leave.”

Here, the company said it fired Tanner for accruing too many points in violation of the attendance policy. Plus, Tanner was aware of the policy and knew that he could view – and keep track of – his absences in Workday.

Moreover, the company said it would’ve fired Tanner for accruing absences in violation of the attendance policy, regardless of whether he requested or used FMLA leave.

As such, the court granted the company’s motion for summary judgment on the FMLA interference claim, and the Eleventh Circuit affirmed.

In sum, the appellate court acknowledged that Tanner likely felt distressed when he learned that he lost his job the day after his child was born. Even so, he failed to provide any evidence that would allow a reasonable jury to find the company engaged in FMLA interference or retaliation. As such, it affirmed the district court’s ruling in the company’s favor.

Tanner v. Stryker Corp. of Mich., No. 22-14188, 2024 U.S. App. LEXIS 15003 (11th Cir. 6/20/24).