Great Lakes Wire

An unmarried partner of a mother giving birth is increasingly common. While state or local laws may provide specific time off for such partners, the Family Medical Leave Act (FMLA) operates differently. Employers must ensure their policies align with FMLA guidelines to avoid potential issues related to paid time off (PTO), FMLA, and wage and hour regulations.

In the case of Tanner v. Stryker Corporation of Michigan, No. 22-14188 (11th Circuit Court of Appeals, June 20, 2024), Tanner joined Stryker in 2020 after it acquired his former employer. His role as "Hub Material Handler II" involved delivering surgical equipment to medical facilities, inspecting equipment post-use, tracking inventory, and placing orders. Tanner was FMLA qualified.

Stryker's employee handbook outlined an attendance policy that varied by employee type: non-exempt employees with set shifts; customer-facing non-exempt employees or those without set shifts; and exempt employees. Disputes arose regarding Tanner’s classification under this policy—whether he had set shifts or a customer-facing role was unclear.

For non-exempt employees with set shifts, certain misconduct led to accrual of “occurrence points.” Absence without taking available leave resulted in two points. The handbook specified disciplinary actions based on these points: one point led to a verbal warning; two points resulted in a first written warning; four points triggered a second written warning; and five points led to termination.

Stryker also had detailed FMLA and parental leave policies providing 12 weeks of unpaid leave with job protection during the period for childbirth or adoption and child bonding. Fathers’ FMLA leave began on the day of their child's birth; any prior absence required using PTO or sick days. Additionally, Stryker’s parental leave policy provided six weeks of paid leave upon childbirth.

Tanner traveled out-of-state before his girlfriend gave birth, exhausting his PTO and accruing enough occurrence points for termination before the baby was born. He argued his leave should have been protected under FMLA but lost both his lawsuit and subsequent appeal.

The 11th Circuit Court stated: “We have little doubt that some people and families who would benefit from FMLA leave are denied its benefits because its reach and scope are limited.” It noted that Tanner was neither pregnant nor married to the woman having his baby; thus, FMLA did not apply as it only covers immediate family members like spouse, parent, or child under 18 unless disabled.

The takeaway emphasizes that HR must verify familial relationships even if situations appear eligible for FMLA protection. As such cases may become more frequent unless laws change or employers adapt similar policies voluntarily.

By Anthony Kaylin Courtesy of SBAM-approved partner ASE Source: Shawe Rosenthal LLP June 26, 2024 Law360 June 20, 2024

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