Family Medical Leave and Stillborns

[Guest REverly]

I'm looking for some help.

I have an employee who delivered a stillborn child. The employee is stating that because its a birth, she should be covered under FMLA and be out for 12 weeks.

While I understand that she is grieving, I'm not sure if this would qualify as a reason under FMLA. I've searched through some references and came up with nothing.

I'm hoping that one of you may have the answer or have heard of a DOL advisory on this matter.

Thanks in advance!

[papogi]

Under FMLA, an employee may take up to 12 weeks off "Because of the birth of a son or daughter of the employee and in order to care for such son or daughter." If the son or daughter is stillborn, there will be no "care" involved. This employee, while tragic the circumstances, has no claim under FMLA. It was the intent of FMLA in cases of birth to allow time for parents to take care of the new child, not to simply grant a 12-week vacation.

[jeanine]

FMLA also allows a person to take leave for their own illnesses, continuing care, etc. Certainly a stillborn birth involves the same recovery as a live birth to the mother. You would have to allow at least the minimum post-partum recovery time.

[papogi]

Agreed. Good point.

[Guest REverly]

Thank you both for your responses!

I had actually received a call back from the DOL on this today. Papogi, both your and my suspicions were correct that it would not qualify under the "birth" provision of FMLA.

Jeanine, your point of it falling under followup care or the "serious health condition" clause would be applicable (based upon medical certification).

Thank you again & Have a great day!