Jennifer Barna, Senior Counsel in the Employment, Labor & Workforce Management and Litigation & Business Disputes practices, in the firm’s Newark office, was quoted in Bloomberg Law Daily Labor Report, in “Stryker Worker Appeal Puts Focus on Early Leave for Child Birth,” by Patrick Dorrian. (Read the full version – subscription required.)

Following is an excerpt:

Stryker Corp.'s defense of its court victory over a Florida employee fired while in Connecticut for his child’s birth will test when workers can take federal job-protected leave prior to a baby’s arrival.

The argument Friday before the US Court of Appeals for the Eleventh Circuit involves a novel issue under the Family and Medical Leave Act’s provision on leave for the birth of a child. The judges will review whether non-pregnant parents can take job-protected leave in advance of the expected due date for reasons unrelated to prenatal care. ..

The appeals court’s ruling will, in some respects, have the potential to provide useful guidance on whether FMLA leave for child birth is ever available prebirth other than when related to prenatal care, Jennifer Stefanick Barna of Epstein Becker & Green PC said. But the facts in Tanner’s lawsuit are so unique and extreme that it may turn out the ruling won’t end up having frequent application, she said.

It’s not often that someone travels so far and is away from work for as long as Tanner was in order to be present for the birth of their child, Barna said. The biggest takeaways from Tanner’s case for her, as someone who counsels employers, are the importance of having clear leave policies and open communications with employees seeking or using FMLA leave, Barna said. …

Statutory Interpretation, Purpose

The briefs lean heavily on issues of statutory interpretation and the purpose of the FMLA, which makes sense given the scarcity of case law on prebirth leave in situations similar to Tanner’s, Barna said. …

Working spouses typically bank other types of non-FMLA leave in advance of a baby’s arrival, Barna said. Open communication when possible is the best way to avoid a lack of those other types of leave for prebirth purposes, she said.

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