When is a male employee entitled to leave under the Family Medical Leave Act for care of a pregnant woman? The answer can be found in new FMLA rules that went into effect earlier this year.

In February 2008, the Department of Labor published a proposal to revise FMLA regulations. In the proposed regulations, the department attempted to clarify a male employee's right to use FMLA leave to care for a woman in connection with a pregnancy or birth.

Under the section 825.120(a)(5) of the proposed regulations, the department wrote: "The father is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or for prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition.”

In response to this proposed rule for leave for care of a pregnant woman, the U.S. Postal Service noted that the use of the term “father” would be problematic because it could be interpreted to include non-spouses as well.

When drafting the final regulations, which went into effect January 16, 2009, the department changed the language of the rule to clarify that a husband is entitled to FMLA-protected leave if he is needed to care for his spouse who is incapacitated due to her pregnancy. Therefore, the department makes clear that FMLA leave to care for a pregnant woman is available to a spouse and not, for example, to a boyfriend or fiancé who is the father of the unborn child.

The final version of 825.120(a)(5) reads: "The husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition.”

Please note that under FMLA, both the mother and the father are entitled to FMLA leave for the birth of a child/bonding (no marriage is required), and both the mother and father may take FMLA leave to care for a newborn child with a serious health condition.