Eleventh Circuit Affirms FMLA Does Not Provide Pre-Birth Leave for Fathers

July 30, 2024

Recently, in Tanner v. Stryker Corp. of Michigan, the US Court of Appeals for the Eleventh Circuit (Eleventh Circuit) affirmed a lower court’s ruling that a non-birthing parent does not have a right to protection under the FMLA prior to the birth of a child.

As background, the plaintiff was expecting a child with his former girlfriend who lived out of state. The plaintiff requested leave under FMLA to travel and await the birth of the child. However, his employer advised that FMLA for the birth of the child does not begin until the day the child is born and therefore any leave taken prior to the birth must be taken under the employer’s existing PTO or sick-time policies. The plaintiff traveled for the birth and exhausted his accrued PTO and sick time prior to the birth. The plaintiff was out of state and unable to work while continuing to await the birth. Under the employer’s attendance policy, absence from work without using accrued PTO or sick time may lead to disciplinary action up to and including employment termination.

The plaintiff sued his employer for both interference with his rights under FMLA and for retaliation. The trial court ruled in favor of the employer, holding that the employee is not entitled to FMLA leave prior to the birth of the child and that termination was in accordance with employer policy. The plaintiff appealed this decision, and the Eleventh Circuit affirmed the trial court’s ruling. In its ruling, the Eleventh Circuit wrote that the facts of this case were quite narrow as to whether FMLA provides “an expectant parent who is neither pregnant nor married to a pregnant spouse with pre-birth leave,” to which the court affirmed the requested leave did not fall under FMLA protection.

While matters of FMLA fall into employment law rather than employee benefits, it is important for employers to ensure FMLA is administered correctly and consistently. This case is a helpful reminder to employers to carefully review the facts of an employee’s specific situation prior to making a determination under FMLA.

Tanner v. Stryker Corp. of Michigan »