Dear Atty., Can My Employee Take Maternity Leave Before The Baby Is Born?
We have an employee who is in the final weeks of her pregnancy. She is healthy and has no medical complications as a result of the pregnancy. She recently approached me and asked if she could take a couple of weeks off prior to the expected due date to get her apartment and the baby’s nursery in order. According to her, she is feeling a strong “nesting” urge. This employee, however, has no PTO remaining. She asked whether this “nesting” time prior to her child’s birth could be covered by FMLA. I’ll be honest with you – – I know enough about the FMLA to be dangerous. I know that it would cover this employee if she had a medical complication from the pregnancy. I also know that she would be covered after the birth of her child for “bonding” leave. But I don’t see anything in the FMLA that would allow her time off prior to the birth of her child for “nesting.” Am I missing something?
Nesting is for the Birds
Actually, it’s a real thing. Many doctors believe that in the final weeks of a woman’s pregnancy, an increase in adrenaline levels may cause some women to feel a very strong nesting urge. It is understandable that an expectant mother may want to act on this urge to get her home in order before life becomes too hectic after the birth of her child.
Are you missing something in your reading of the FMLA? I think so. The answer to your question lies in the somewhat obscure interpretive regulations to the Wisconsin version of the FMLA.
The Law: Under the federal FMLA, it is clear that a woman is entitled to take 12 weeks off for the birth of a child. Under the federal FMLA, this entitlement starts, “beginning on the date of birth.” The Wisconsin version of the FMLA provides for six weeks of leave for the birth of a child. Under the Wisconsin law, this leave must start “within” 16 weeks of the child’s birth. The regulations that interpret the Wisconsin law make clear that the word “within” means that the leave can be taken, “16 weeks before the estimated date of birth and no later than 16 weeks after the actual date of birth.”
So, as you can see, the Wisconsin and federal laws take different approaches to this issue. Under the Wisconsin FMLA, your employee would be entitled to take time off prior to the estimated date of birth so long as the leave begins within the final 16 weeks of pregnancy.
Another thing to keep in mind is that the time that the employee takes off prior to the birth of her child under the Wisconsin law cannot be counted against the 12 weeks that she is entitled to take under the federal law. This is because the federal law does not apply to leaves beginning prior to the birth of a child. Stated differently, because the federal law and Wisconsin laws do not cover the same things, you cannot run this employee’s time off for “nesting” leave concurrently with her time off under the federal law. This means that the employee could, under the facts you gave me, have as much as 14 weeks off in a row: two weeks of nesting leave prior to the birth of the child under Wisconsin law and 12 weeks after the birth under the federal law.
Also, keep in mind that we are only talking about “bonding” and “nesting” leave. The federal FMLA certainly would apply prior to the birth of a child in situations in which the pregnancy is causing the mother to experience medical problems, i.e., the mother’s own serious health condition.
Nesting is not just for the birds. This instinct in humans can be as powerful as it is for our feathered friends. Legally, the Wisconsin law provides mothers with protected leave to act on this urge.
The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to for future editions of “Dear Atty.”
If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.