In an interesting twist on the right to care for family members under the Family and Medical Leave Act, a court has held that the FMLA does not apply to unborn children.

In the case of Lukudu v. JBS USA, LLC, an employee was on final written warning for attendance violations.  He then called out to go to the hospital because he thought his pregnant domestic partner was in labor.  In fact, the baby was not born for another week.  The employee was terminated based on his further attendance violation.  He sued his employer for violating his FMLA right to take leave in order to care for his child.  (He also argued that he should have been given leave to care for his domestic partner, whom he called his “wife,” but since they were not actually married, she could not be considered a “spouse” under the FMLA).

Observing that the baby was born a week after the employee’s termination, the U.S. District Court for the Western District of Kentucky found that the employee could not take FMLA leave to care for an unborn child.  Looking to the actual language of the FMLA, the court stated, “it is impossible for [the employee] to be entitled to FMLA leave ‘[b]ecause of the birth of a son … and in order to care for such son’ when that son had not yet been born.”

So, life may (or may not) begin at conception, but FMLA doesn’t apply until the child is born.