[CarolinaWife]

This is going to sound like a weird question, but it came up in a discussion with my employer over equal provision of maternity leave to bio- and adoptive moms...

If a woman is pregnant and chooses to give up the baby for adoption at birth, does she still qualify for FMLA?

The Dept of Labor website says FMLA can be taken for these reasons:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition

So, on that first bullet - is it really birth AND care? That would imply to me that a bmom who gives up a child at birth doesn't qualify for FMLA? I understand that she would still qualify for Short Term Disability...all of this assuming that she was employed FT at a large enough company for at least a year, etc.

My employer is saying that the purpose of the maternity leave is for recovery from birth... But they also say that you must qualify for FMLA to get maternity leave.

[tobyandcoco]

The technical (legal) answer is no, she would not qualify.

However, realistically, if it wasn't known to the person approving FMLA, they wouldn't know any differently and they would approve it. Typically, when taking FMLA for the birth of a baby, the employer only requires hosptial documentation of the baby's birth. The birthmom would be able to provide this. There is not additional documentation is that usually requested in these types of situations, therefore it's unlikely that it would be questioned.

On a semi-related note, my dh's employer offers 'adoption leave'. They offer paid time off to adoptive mom's and dad's following the placement of an adoptive baby. The difference is: mom's get 2 weeks paid adoption leave and dad's get 1 week. How is that legal?? I really don't understand it!

[DianeS]

I believe that "yes" the birthmother would qualify for FMLA leave. After all, she has given birth, and even before FMLA was implemented mothers who gave birth qualified for 6 weeks of disability. The FMLA makes sure that 6 weeks of disability after giving birth are ones where her job is protected.

Whether she could take any more than the six weeks... I don't think a birthmother could do that. The additional six weeks is for caring for the child, I believe. But she definately qualifies for up to the first six weeks since she gave birth and that's definately a disability that prevents the mother from doing her job for a while.

Not all qualified reasons for taking FMLA leave get you the whole 12 weeks. I had surgery last year and had to take 5 weeks off. It was FMLA leave, even though I only was unable to do my job for 5 weeks, so I only got 5 weeks off.

Does that make sense?

[ProspectiveSingleMom]

She would still qualify for leave while recovering from the birth under the "unable to work because of a serious health condition" rule, but as a previous poster mentioned, the employer likely would not ask questions and the mother could get approved for the full leave based on documentation of the birth. I know of cases where fathers took paternity leave (which is also covered) and then did not use the time providing child care (i.e. in a case where the mother and father were not together and the child was with the mother). Most employers tend to err on the side of caution when it comes to FMLA because they don't want to risk legal difficulties.