In our employment law cases involving pregnancy, it’s usually the mother who has been the victim of discrimination. But mothers aren’t the only ones entitled to job protection when there is a baby on the way. Ohio and federal employment laws, in particular the Family and Medical Leave Act (the “FMLA”), protect dads in certain cases too.
The FMLA entitles an expecting mother to leave if her pregnancy makes her unable to work. The Ohio and federal pregnancy discrimination and disability discrimination laws might protect her as well. The father, on the other hand, is entitled to FMLA leave during pregnancy only if he is needed to care for his wife due to pregnancy-related incapacity. However, the regulations use the term “husband” instead of “father” and “spouse” instead of “mother” when discussing the prenatal period. This suggests that a father who is not actually married to the mother might not be entitled to FMLA leave before the birth (as opposed to after).
Once the child is born, both the mother and father (regardless of marital status) are entitled to leave for the actual childbirth, and during the 12-month period following birth, known as “bonding time.” This latter type of leave need not be taken immediately after the birth. It can instead be taken at any point during the ensuing 12-month period. Significantly, bonding time leave can be taken even if everyone is perfectly healthy. In cases where either the mother or child have medical complications, fathers might qualify for leave under the FMLA, or as a “reasonable accommodation” under the federal Americans with Disabilities Act or the Ohio disability discrimination laws.
Both parents should be aware of two important limitations on “bonding time” leave. Ordinarily, an eligible mother and father are each entitled to 12 weeks of leave under the FMLA. If the parents are employed by the same employer, however, they are entitled to only 12 weeks combined. This is true even if the parents work at different worksites. In addition, while eligible employees can ordinarily take FMLA leave all at once or in smaller chunks of time as needed (called “intermittent” leave), a mother and father can take bonding time leave intermittently only if the employer agrees.
Although it’s usually the moms who bear the brunt of pregnancy-related discrimination, it is important that fathers understand their workplace rights too.