What's the difference between pregnancy leave and parental leave under the FMLA?

Question

I am due to give birth in four months. My husband and I both work for the same company, and we both want to take time off after the baby is born. The HR manager told us that we can take a combined total of 12 weeks of FMLA leave for parenting purposes. But I've already taken four days of FMLA leave because of morning sickness and doctors' appointments. And, I might need more time off before the baby is born, depending on how my pregnancy progresses. Does this mean we will get less time off after the baby is born?

Answer

It can be hard to tell the difference between pregnancy leave and parenting leave under the federal Family and Medical Leave Act (FMLA). If you weren't married to someone working for the same employer, it wouldn't matter because you'd each be entitled to up to 12 weeks for any allowed purpose. However, the FMLA has a special rule that limits the amount of parental leave a married couple can take when working for the same employer. Because of this, it’s important to distinguish your pregnancy leave from the parenting leave that you and your spouse want to take.

The FMLA gives eligible employees the right to take time off for a variety of health and care taking reasons, including bonding with a new child. Employees also have the right to time off for their own serious health conditions or to care for family members with serious health conditions. For all these types of leave, employers must allow each employee to take up to 12 weeks of leave per year, total.

If you and your spouse work for the same employer, however, your parental leave rights are more limited. Instead of taking 12 weeks of parental leave each, the two of you may only take a combined total of 12 weeks of leave to bond with your child. (The same rule applies to a married couple taking leave to care for a parent with a serious health condition.) For example, if you take eight weeks of parenting leave, then your spouse may take only four weeks off.

Leave for your own serious health condition isn't capped in this way. Incapacity due to pregnancy and childbirth qualify as serious health conditions. This includes time when you are unable to work due to your pregnancy and time you spend at doctors' appointments. And, if you are incapacitated after giving birth, that time also counts as leave for a serious health condition. For example, if you take one week off due to prenatal medical appointments and morning sickness, an additional two weeks off while you are incapacitated right before giving birth, and then two weeks off after giving birth while recovering from a difficult delivery, you would have used up five weeks of FMLA leave for a serious health condition.

The time you take off for your pregnancy counts against your own FMLA leave entitlement, but it does not count against your spouse’s leave entitlement. To continue the example above, if you used five weeks of FMLA leave for your own serious health condition, you would have seven weeks of leave left. If you used all seven weeks to bond with your child, your spouse could use the remaining five weeks of FMLA leave to do the same. (Your seven weeks plus your spouse's five weeks adds up to a combined parenting total of 12 weeks.) If, however, you went back to work immediately after recovering from childbirth and took no time off for parenting, your spouse could take 12 weeks of parenting leave. In other words, your five weeks of leave for pregnancy would not count against your spouse's parenting leave.

Your spouse has the same right to use FMLA leave for other purposes. To return to our example, if your spouse was limited to five weeks of parental leave because you used the other seven weeks, your spouse would still have seven weeks of FMLA leave to use for other purposes. For example, if your baby developed a serious medical condition, your spouse would still have seven weeks of leave available to care for your child.

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