When policies prevail: Employer’s defense in FMLA dispute


Balancing business and benefits when employees take leave

Tristan and his girlfriend were expecting a child. The company’s Family and Medical Leave Act (FMLA) policy stated: “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.”

On June 21, Tristan emailed Courtney, the company leave specialist, and Tim, his manager, with a formal request for paternity leave starting July 26. Tristan said that his child’s “anticipated arrival is the last week of July/first week of August.”

Courtney let Tristan know he was approved for FMLA leave from July 26 to October 17, and that: “The FMLA requires that you notify us as soon as practicable if the dates of scheduled leave change, are extended, or were initially unknown.”

On July 30, Tristan told Tim that he would be absent the following week because his daughter was expected to be born. Tristan acknowledged that:

  • “HR said the paternity leave doesn’t start till the actual birth so . . . I have to use my PTO/sick days till that day,” and
  • He had only four days of PTO left.

He used sick leave from August 9-12. By August 13, Tristan was out of sick leave and PTO. He continued to take time off, accruing eight attendance points until his baby was born on August 19. The next day, he was fired because of his attendance points, and he sued.

In court, Tristan claimed that the FMLA covered the days he was absent from work and for which he accrued points because “those four absences were necessary if he was to be there for the birth of his daughter.”

The employer argued that Tristan was terminated because of his accrual of more than five occurrence points under the attendance policy before he began his FMLA leave.

The court held that Tristan:

  • Was not entitled to take FMLA leave for absences before his child’s birth.  
  • Was not on FMLA leave when the termination decision was made.

The company could have terminated Tristan for accruing eight occurrence points due to repeated and unexcused absences, regardless of whether he was about to begin FMLA leave.

Tristan v. Stryker Corporation of Michigan, 11th Circuit Court of Appeals, No. 22-14188, June 20, 2024.

Note: Married fathers may take FMLA leave before the birth of their child to care for their expectant wives, including to attend prenatal visits.

Key to remember: 

Employees are not always entitled to take FMLA leave before the birth of their child. Unapproved leave may be counted under an employer’s attendance policy.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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