Tristan Tanner worked for a medical technology company called Stryker and was responsible for delivering surgical equipment to hospitals. In June 2021, Tanner requested leave for the birth of his child. Tanner and his former girlfriend were expecting a baby in early August 2021 and his former girlfriend had moved from Tampa (where Tanner lived) to Connecticut. Tanner requested leave under the Family and Medical Leave Act (“FMLA”) beginning July 26, 2021 so that he could travel to Connecticut and be present for the birth of his child.
Stryker told Tanner multiple times that his FMLA leave would not begin until his child was born. The company advised him that if he was going to take time off from work prior to the child’s birth, he would need to use sick leave or vacation.
Tanner only had four days of Paid Time Off (“PTO”) available but he had a handful of sick leave days. He decided to take five days off work from Friday, July 30 to Friday, August 6 to pack and plan for his trip to Connecticut during which he used all four of his PTO days and one sick leave day. He then traveled to Connecticut on Sunday, August 8 where he waited for the birth of his baby. He spent his days staying at his hotel and looking around neighborhoods to see if he could see himself relocating to Connecticut. His baby’s due date came and went. Tanner ran out of PTO and sick leave on Friday, August 13.
The baby was born four days later on Thursday, August 19. For those four workdays, Tanner did not have any accrued leave to cover his time off and Stryker docked him attendance points for his absences under its attendance policy.
One day after the baby’s birth on August 20, Stryker’s Human Resources staff called Tanner and first congratulated him on the birth of his child. The Human Resources staff member then told Tanner that effective that day, he was no longer employed with Stryker due to the unexcused absences he took before the birth of his child.
Tanner filed a lawsuit claiming interference with his FMLA rights and FMLA retaliation. The trial court determined there was no interference with Tanner’s FMLA rights because Tanner was not entitled to take FMLA leave for his absences before the birth of his child. Upon appeal, the Eleventh Circuit agreed with the trial court. The Eleventh Circuit said the narrow question was: “Does the FMLA provide an expectant parent who is neither pregnant nor married to a pregnant spouse with pre-birth leave so that he may await the child birth away from work?” It determined the answer was “no.” The Eleventh Circuit recognized that employees may use job-protected FMLA leave before the birth of their child if they need to care for a pregnant spouse who is incapacitated or needs prenatal care. However, Tanner was not married to his former girlfriend, who was pregnant with his child.
The trial court determined that there was no FMLA retaliation since Tanner was not entitled to take and did not take FMLA leave when Stryker made the decision to terminate his employment. The Eleventh Circuit agreed.
Tanner v. Stryker Corp. of Mich., 104 F.4th 1278 (11th Cir. 2024).
Note: In California, the California Family Rights Act (“CFRA”) allows employees to take job-protected CFRA leave to care for family members and a designated person with a serious health condition. The Eleventh Circuit focused on the fact that Tanner was not married to the person who was carrying his child. Therefore, he was not eligible to take pre-birth FMLA leave to care for his pregnant former girlfriend since she was not his spouse. Since the CFFA has expanded the use of job-protected CFRA leave to care for a designated person, then an employee who is eligible for CFRA leave and who is in Tanner’s situation could use CFRA before the birth of their child to care for a former partner if they designate the former partner as their “designated person.” However, note that Tanner did not claim he took time off work to care for his former girlfriend due to her serious health condition. Instead, he took time off to prepare for his trip, to spend time in his hotel, and to explore neighborhoods.