August 8, 2024
Tara Paulson, Mark Fahleson, Julie SchumacherRembolt Ludtke Employment & Labor Law Practice Group
Recent developments under the Pregnant Workers Fairness Act (PWFA) and Family and Medical Leave Act (FMLA) have placed renewed emphasis on the legal protections extended to pregnant workers. Both the PWFA and FMLA extend rights to pregnant workers experiencing complications prior to the birth of a child. But what rights are extended to an employee who is an expectant parent but is not pregnant nor married to a pregnant spouse? That issue was recently analyzed under the FMLA in Tanner v. Stryker Corp. of Michigan, 104 F.4th 1278 (11th Cir. 2024).
Plaintiff Tristan Tanner was employed by Stryker in Florida and held a position that required him to deliver surgical equipment to hospitals. Tanner learned that his ex-girlfriend, who had moved to Connecticut, was pregnant and expecting in August 2021. In June 2021 Tanner contacted a Stryker leave specialist to request paternity leave for the birth of his child and was told that he was eligible for FMLA leave, but that a father’s FMLA leave begins the day of the child’s birth and that he would have to use PTO or sick leave if absent before then. In early July e-mailed his supervisor and human resources requesting leave beginning July 26th, at which time Tanner was planning to temporarily relocate to Connecticut for the duration of his paternity leave. Because of uncertainty over his ex-girlfriend’s due date, Tanner did not take off work until July 30 and did not travel to Connecticut until August 8. By the time the child was born on August 19, Tanner had exhausted all available PTO and sick leave and had accumulated the maximum number of points under Stryker’s attendance policy. According to Tanner, during an August 20 call Stryker’s human resource representative told him, “Congratulations on the birth of your child . . . [y]ou’re terminated from your position” due to unexcused absences.
Tanner sued in September 2021 under the FMLA alleging interference and retaliation. The trial court granted Stryker’s motion for summary judgment (dismissing the case) and Tanner appealed. On appeal, the U.S. Court of Appeals for the Eleventh Circuit (which covers Alabama, Georgia and Florida) framed the issue as follows:
[D]oes the FMLA provide an expectant parent who is neither pregnant nor married to a pregnant spouse with pre-birth leave so that he may await the child’s birth away from work? Again, it is undisputed that during the four days he was not working and for which he claims entitlement to FMLA leave, Tanner was in Connecticut waiting for the child to be born. The answer to that question . . . is “no.”
Id. at 1285. Relying upon FMLA regulations, the appeals court said the FMLA does provide pre-birth leave for spouses who need to care for their pregnant spouse if they are incapacitated and in need of prenatal care. However, Tanner was neither pregnant nor married to the woman he had a baby with and thus job-protected FMLA leave for him as a non-married father would start the day the child was born. The court concluded:
We acknowledge the distress Tanner surely felt when he lost his job the day after his child was born. Nonetheless, he has offered no evidence from which a reasonable jury could conclude that his former employer engaged in FMLA retaliation or interference. We therefore affirm the district court’s grant of summary judgment in Stryker’s favor.
Takeaways: Had Tanner’s case been allowed to proceed it’s quite likely that a sympathetic jury would find in favor of Tanner, yet a strict application of the FMLA demonstrates he was not entitled to job-protected FMLA prior to the birth of his child. While this Eleventh Circuit case does not apply to employers in Nebraska and Iowa, it’s detailed analysis of the issues and FMLA would most likely be found persuasive by the U.S. Court of Appeals for the Eighth Circuit which covers those states.
Pregnancy-related employment issues remain an enforcement priority for federal and state agencies and employers are cautioned to carefully analyze workplace issues involving pregnancy and the potential impact of the FMLA, PWFA, and other employment laws.
The Rembolt Ludtke Employment & Labor Law Practice Group is available to assist employers with compliance with Title VII and the EEOC’s new enforcement guidance as well as providing the “recurring” employee training directed by the EEOC.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with their attorney.
