An unmarried partner (regardless of whether a man or woman) of a mother giving birth is becoming more and more common these days. Although state or local law may provide specific time off for a partner for pregnancy, the Family Medical Leave Act (FMLA) works slightly differently. Employers need to ensure that their policy supports the FMLA approach. The following case demonstrates how to handle the situation as PTO, FMLA, and wage and hour issues could arise.
In Tanner v. Stryker Corporation of Michigan, No. 22-14188 (11th Circuit Court of Appeals, 6/20/24), Tanner became a Stryker employee in 2020, after the company acquired his former employer. Tanner’s position at Stryker was “Hub Material Handler II,” which made him responsible for “delivering surgical equipment to hospitals and surgical centers, retrieving and inspecting equipment after use, tracking inventory[,] and placing orders.” He was FMLA qualified.
Stryker’s employee handbook, a copy of which Tanner received, contained an attendance policy with different rules depending on the type of employee. Stryker had three categories of employees for purposes of its attendance policy:
(1) non-exempt employees with set shifts,
(2) customer-facing, non-exempt employees or non-exempt employees without set shifts, and
(3) exempt employees.
There is some dispute about how Tanner’s supervisors should have classified him for purposes of the attendance policy, but the question was whether he had set shifts or a customer-facing job. According to the employee handbook, for non-exempt employees with set shifts, certain types of misconduct led to accrual of “occurrence points.” Absence from work without taking an available leave day resulted in the accrual of two points. The handbook specified disciplinary actions based on accrual of occurrence points, stating, “Accumulation of occurrence points within a rolling 12-month period will generally result in the following disciplinary actions: a verbal warning, for one point; first written warning, for two points; a second written warning, for four points; and termination, for five points.”
Stryker also had FMLA and parental leave policies, which were laid out in the employee handbook. The FMLA policy provided Stryker employees with 12 weeks of unpaid leave and protection from termination during the leave period. The employee handbook stated that FMLA leave was “available to employees who need time off . . . for childbirth or adoption and for child bonding.”
Under the policy, a father’s FMLA leave for the birth of his child begins on the day of his child’s birth. If a father is absent prior to the birth of his child, he must use his “personal time off” (“PTO”) or “sick days to cover these absences.” Stryker, in addition, had a parental leave policy that provided six weeks of paid leave upon the birth of a child.
The two leave policies worked in tandem. For example, a parent who was eligible for both types of leave could layer his paid parental leave on top of his unpaid FMLA leave, and as a result, he would be paid for half of his FMLA leave.
So, what is the issue? Tanner left and traveled to another state to be with his girlfriend in the weeks before she gave birth. He used up his PTO and accumulated enough points to be terminated before his girlfriend had the baby. He argued that his leave should have been protected under the FMLA.
Tanner sued and his lawsuit was dismissed. On appeal, the 11th Circuit Court of Appeals affirmed the dismissal. The Court stated, “We have little doubt that some people and families who would benefit from FMLA leave are denied its benefits because its reach and scope are limited.” Tanner was neither pregnant nor married to the woman with whom he had a baby, the Court pointed out. The FMLA only covers leave to care for immediate family members – meaning spouse, parent, and child under the age of 18 (unless disabled and unable to care for themselves).
The takeaway is that although it sounds like an FMLA situation, it may not be, and HR needs to confirm familial relationships. This situation may arise more frequently and unless the law changes, or the employer decides to mimic similar leave in this situation, the employee is not protected for leave until the baby is born. Make sure that all employees and managers are trained on this point.
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE. Source: Shawe Rosenthal LLP 6/26/24, Law360 6/20/24
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