Best Maternity and FMLA Leave Attorneys Answers: Can I get extra medical leave under the FMLA if my baby is born prematurely and in the NICU? Can I split up my maternity leave or do I have to take all my FMLA leave at once? Do I get maternity leave if I do not qualify under the FMLA?
A viral TicTok video of a mother returning to work after 12 days while her prematurely born baby is in the neonatal intensive care unit (NICU) is gaining a lot of attention is gaining a lot of attention in mainstream media around the world. (See Mom shares emotional video of return to work days after birth; Mother of premature baby reveals she had to return to work; US mum in tears over maternity leave situation as she returns to work 12 days after giving birth to her premature daughter). Why was her time so limited when the Family and Medical Leave Act (“FMLA“) provides qualified employees with 12 weeks of unpaid leave? Let’s unpack that.
First, in order to get FMLA, both the employer and the employee must fall within the requirements set for in that law. (See Do I qualify for FMLA? – YouTube; Top FMLA Lawyer: Am I Eligible For Medical Leave From Work?; Are All Employees Eligible For FMLA? – Call The Right Attorney). Initially, an employer must have 50 or more employees to “be covered” for purposes of being required to follow the FMLA. Then employees are only eligible for FMLA leave if that employee has been employed by that employer for 12 months (non-consecutive employment is okay); worked 1,250 hours during the 12-month period preceding the leave; works at a location where that employer employs 50 or more employees within a 75-mile radius. If an employee/new mother or father is not eligible for FMLA, then he or she is limited to the time off provided or allowed by the employer and has no job protection for taking leave beyond that time. As such, the new mother-employee would not have a wrongful termination for taking more leave then allotted by her employer, even if it was to take care of her baby in the NICU. Of course, the employer must apply its leave policy equally and cannot discriminate in its application of its leave policy based on the pregnancy of an employee under the Pregnancy Discrimination Act of 1978 (“PDA“, which amended Title VII of the Civil Rights Act of 1964.
What about getting a disability accommodation under the Americans with Disabilities Act (“ADA“)? Unfortunately, the ADA only provides accommodations to employees with disabilities. It does not provide accommodations nor disability discrimination protection because the employee is associated with another person with a disability. As such, the fact that the newborn baby was disabled and in the NICU triggered absolutely no job protection rights for this mother.
Maybe this new mom was covered under the FMLA wanted to save as much of her 12 weeks as possible for when the baby came home instead of using it all while the baby was in the NICU. Importantly, the FMLA provides a total of 12 weeks per year to an employee regardless of the number of qualifying family or personal leave issues that come up. For example, if an employee has to take leave to care for an ailing father for two weeks earlier in the year, that same employee would only have 10 weeks left to use to take care of her baby in the NICU and maternity leave when the baby comes home. Similarly stated, the FMLA clock does not reset with each new qualifying event or medical condition.
It is best to note that the Department of Labor (“DOL“) has made it perfectly clear that eligible employees are permitted to use unpaid FMLA maternity leave intermittently, meaning that a pregnant woman or new parent can use their available FMLA leave one day or few days at a time, a week or a few weeks at a time, or a month or a few months at a time. You do not have to use all 12 weeks all at once, and it is wholly your choice how to split it up. (See FMLA Question: Can An Employee Spread Out Maternity Leave?). In this case, the mom could have strategically used FMLA to take off every other day to be at the NICU.
There is one more factor that may have limited a new mother’s time on maternity leave under the FMLA. If the new father or other mother both work for the same employer, the FMLA limits them to a combined 12 weeks jointly to be divided any way they choose between the two of them. The parents can overlap the FMLA leave or not, but the total amount of FMLA leave to care for a healthy baby in 12 weeks combined. However, both new parents are entitled to take their remaining weeks of FMLA leave for another FMLA-qualifying purpose, including a serious health condition of the child. As such, in this case, the parents could both take FMLA to care for the child in the NICU and save the maternity/paternity leave for when the baby came home.
The good news for our TikTok mom is that it appears that the employer stepped in to give her some additional time off. Sometimes, an employer’s good heart is all that an employee needs.
If you feel that you are being denied maternity leave rights under the Family Medical Leave Act (FMLA) or leave to care for a sick family member, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The best option is not to wait. Call our top attorneys in Cleveland, Cincinnati, Columbus, Youngstown, Toledo and Detroit. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment law. Our lawyers will be here to get you the FMLA time off that you are entitled to or fight to get you paid for being wrongfully fired.
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