Does FMLA Leave Cover Unpaid Time Before Birth of a Child?

Updated on February 11, 2009
B.D. asks from The Colony, TX
6 answers

I am due in three weeks and would like to start my unpaid leave before the baby is born. My company has never been well-versed on FMLA and it was a huge battle with my 2nd child to get more than 6 weeks of unpaid leave (they only considered the medical certification for child birth and not the time to care for your newborn). Does FMLA cover leave before the birth of your child or do you have to work until your child is born?

Thanks in advance!

What can I do next?

  • Add yourAnswer own comment
  • Ask your own question Add Question
  • Join the Mamapedia community Mamapedia
  • as inappropriate
  • this with your friends

More Answers



answers from Dallas on

It looks like you might need a clariication of terms here. FMLA covers THREE SEPARATE situations, two of which usually overlap in the case of a woman giving birth:
1) your own medical inability to work
2) caring for a newborn or newly adopted child
3) caring for an immediate family member who is ill and in need of constant care.

Under most situations, your employer is required to give you 12 weeks of UNPAID leave per year to cover any combination of these situation. The 12 weeks is cumulative over the year--so, for instance, if you take 8 weeks to care for your child when she's born, then you get injured 6 months later and are out for 4 weeks: that's your 12.

Now, for women who give birth, obviously, 1 and 2 usually overlap. In addition, many employers allow you to take PAID sick or disability leave towards those 12 weeks--so, for instance, you might go on 6 weeks sick leave after your child is born, and still get paid. It is up to your employer whether this paid leave counts towards your 12 wks FMLA or not. So, for instance, when my DD was born, I was entitled to 8 wks sick leave, since I had a C-section. The way my employer's policy was written, I was then legally entitled to an additional 12 weeks unpaid under FMLA (although I couldn't afford to take it). If your employer only offers unpaid leave, however, that gets rid of at least this complication.

So what you're looking at before the baby is born is that, as others have noted, if your doctor gives you a note, you may qualify for FMLA under situtation (1) above. Immediately after the child is born, you will likely qualify for (1) and (2) at the same time. Then, once you feel better, if you still haven't used your 12 weeks, you'll still qualify for (2).

And, incidentally, (2) works for men, too. Your husband is legally entitled to take 12 weeks unpaid leave to care for your newborn anytime within one year of the child's birth. Most men don't use it--and my husband's boss laughed when DH brought it up--but, legally, it is true.

Most people--including HR folks--unfortunately don't understand FMLA. Admittedly, it is complicated, but it's worth figuring out to insist upon your rights. I happen to be a professor, and got most of my info by reading two booklets published by my professional organization about the ways in which FMLA applies to my professional situation: "The Family and Medical Leave Act: questions and answers" and "Pregnancy and the Academy: questions and answers," both published by the American Academy of University Professors. Both these books were written by lawyers, but in an accessible style so non-lawyers can understand. You could probably find similar books at your local library, if you need some ammunition to bring with you when you talk to your employer.

Good luck with everything, and congratulations on your baby girl!

2 moms found this helpful


answers from Dallas on

My experience was the 6 weeks is covered as short term disability through my medical insurance (provided by the company) and thus I got 90% of my regular pay. As other's noted that 6 weeks (or 8 weeks for c-section) can start early if the doc says it's medically necessary. At my company the Family leave is separate from the 6 weeks and family leave starts when the 6 weeks end. So, for example, if my company only allowed the minimum of twelve weeks (mine actually allowed up to one year), then I would have gotten off for a total of 4 1/2 months, which is what I ended up doing with my first child. I do think it's important that you go ahead and discuss and apply for the family leave before childbirth as that allows your boss to plan appropriately for your absence.

Of course, if you don't have short term disability, you would only be entitled to the 12 weeks and as others suggest, you do need a doctor's order that it is medically necessary. Personally, I preferred to work up until the delivery as it kept me busy and less focused on my girth - I even worked out the morning of delivery when I was in the early stages of labor - my recovery from the birth of a 9 lb baby was very fast as a result. is the Family Leave law:

I would suggest you send a link to that to your HR dept and print off a copy and give to anyone involved in your leave request.

1 mom found this helpful


answers from Dallas on

Yeah, it has to be medically nessesary for you to not work in order to get FMLA.
I feel you though. I waited tables at a steak house until 12 days before I had my last child. It was no fun!

1 mom found this helpful


answers from Wichita Falls on

If your doctor puts you on medically required bed rest, then you are medically unable to go to work - which if FMLA applies to your company, should start your 12 weeks then.

1 mom found this helpful


answers from Dallas on

First of all - congratulations! I have a 10 week old so it seems like I was just in your shoes, especially since I still look pregnant! LOL!
Anyway, to my understanding FMLA covers 12 weeks regardless if the event has taken place. You may have to obtain a letter from your doctor advising bedrest, etc., but that shouldn't be a problem probably since you're so close to your due date, y'know?
My son came sooner than expected but I was planning on taking off, using FMLA to secure my job, five days before he was due. So...basically I do think you can use it. I tried looking up FMLA but it didn't specify your specific question. Sorry.

1 mom found this helpful


answers from Dallas on

I've been in HR for 10 years and recently took FMLA for the birth of my son. You are eligible for 12 weeks of paid leave in a rolling 12 month period, but the company is only required to allow you the time off per your doctor's instuctions. Therefore several of the ladies here that mentioned you have to get a doctor's note are correct. If you would like time off before the birth, your doctor will need to indicate it. The same goes for after the birth. Your employer is only required to allow you to take the time that your doctor indicates you need. Therefore if your doctor releases you back to work in 6 weeks, that is the only time the employer is required to give you. There are some employers that allow you to take the full 12 week entitlement regardless of what the doctor says, but they are not required to do so. I was lucky to have a doctor that was flexible in this regard and gave me the time I needed to bond with my baby. God Bless!!

1 mom found this helpful
For Updates and Special Promotions
Follow Us

Related Questions

Related Searches