Father Has No FMLA Claim for Leave Taken to Prepare for Child’s Birth

Takeaway: Despite this decision, the Family and Medical Leave Act (FMLA) provides numerous protections to expectant parents.

The 11th U.S. Circuit Court of Appeals ruled that an expectant father did not have the right to take FMLA leave to travel out of state and prepare for the birth of his child.

Stryker, a medical technology company that sells products designed to improve patient in-hospital outcomes, hired the plaintiff in 2020, after it acquired his former employer. In his role at Stryker, the plaintiff was responsible for delivering surgical equipment to hospitals and surgical centers, retrieving and inspecting equipment after use, tracking inventory, and placing orders. He was based out of Tampa, Fla. The plaintiff’s supervisor was a field operations manager, and the plaintiff’s work was overseen by an HR business partner.

The plaintiff and his former girlfriend were expecting a child in the summer of 2021. In January 2021, the mother moved to Connecticut, where she planned to have the baby.

Under Stryker’s attendance policy, noncustomer-facing employees who were absent without leave accrued two “occurrence points.” Accumulation of occurrence points within a 12-month period would generally result in termination for five points.

In June 2021, the plaintiff contacted Stryker to request paternity leave for the birth of his daughter, which he anticipated would take place in late July or early August, and stated that he would relocate to Connecticut during his time off. Stryker confirmed that he was eligible for FMLA and parental leave benefits, and Stryker’s leave specialist approved the plaintiff’s FMLA and parental leave request to start when his child was born. By July 20, the plaintiff knew the due date was going to be closer to Aug. 12, but he told the field operations manager on July 30 that he would be absent the next week. He acknowledged that he only had four days of accrued paid time off (PTO).

The plaintiff did not leave for Connecticut immediately; instead, he used his four remaining days of PTO and one day of sick leave to plan, pack, and prepare for the trip. On Aug. 8, he left for Connecticut. Until the child was born on Aug. 19, the plaintiff stayed in a hotel and spent time touring local neighborhoods to see if he could see himself relocating there in the near future.

The plaintiff used sick leave from Aug. 9-12, after which time he had exhausted both his sick leave and PTO. When he missed work on Aug. 13, he accrued two occurrence points. On Aug. 16, he notified Stryker that the doctors were intending to induce his former girlfriend on Aug. 18. He asked what he should do until then. The specialist told the plaintiff to work with his manager and HR business partner to determine how he would take time off until the baby arrived. The plaintiff accrued two more occurrence points on Aug. 16.

The HR business partner notified the plaintiff on Aug. 17 that if he did not have time to cover his absence, he would accrue points and the company would call him at some point to discuss. He did not work on Aug. 17 and had no remaining leave, so he accrued another two occurrence points, bringing his total accrued points to six.

His ex-girlfriend went into labor the next day, Aug. 18, and gave birth on Aug. 19. The plaintiff accrued another two occurrence points on Aug. 18, bringing his total to eight points. The plaintiff notified his supervisor that the baby had arrived and the supervisor asked him to “jump on a call the following day.” Stryker terminated him on Aug. 20.

The plaintiff sued Stryker for interference with FMLA rights and FMLA retaliation. Stryker moved for summary judgment, which the district court granted.

The plaintiff appealed to the 11th Circuit, which considered his argument that the FMLA protected pre-birth leave.

The court agreed that the FMLA protects certain types of pre-birth leave, such as leave for an expectant mother for incapacity due to pregnancy or for prenatal care. Additionally, U.S. Department of Labor regulations allow adoptive and foster parents to take FMLA leave before placement or adoption if necessary to proceed with the adoption or care.

While the 11th Circuit recognized the potential benefit of giving a new parent like the plaintiff leave to prepare for his daughter’s birth, it found that the FMLA did not protect this type of leave. The plaintiff also failed to show that Stryker retaliated against him because of his FMLA leave request. Thus, the court upheld the dismissal of his claims on summary judgment.

Tanner v. Stryker Corporation of Michigan, 11th Cir., No. 22-14188 (June 20, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.