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Davis Brown Employment and Labor Law Blog

HR Quick Take: Laid-Off Employees and FMLA - April 10, 2020

Q: I have multiple employees on lay off at this time.  Several are pregnant - should I give them FMLA when the baby is born? 

A: Employees who are not currently active and working do not qualify to receive FMLA time off. Therefore, you would not necessarily grant FMLA.  You could indicate to employees that while FMLA does not technically apply, you are willing to grant a 12 week leave for any personal health condition including the birth of their child. You would want to condition this leave as subject to changing business conditions and the existing lay off. While most businesses hope to return all employees to their prior positions as soon as possible, you do need to plan for the possibility that this will not be possible in the next few months. You also need to take into consideration if they have other leave available such as PTO.

If you have a disability policy, you would need to assess the terms of the policy to determine applicability as employees who are not active when the disability occurs may not qualify for payment. The condition -being pregnant- occurred prior to the layoff, but simply being pregnant does not qualify an employee for disability payments. Those normally begin if there are health issues such as orders for bed rest or upon birth of the child.

HR Quick Takes features client questions and answers from Iowa employment attorneys. If you have a question you’d like answered, email

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