Legal Question in Medical Leave in New Mexico

Delayed FMLA

I am pregnant, due in March 2009, and I have not been employed at my company for 12 months yet (I started June 30, 2008). I have asked if I can wait and take FMLA leave in July once I qualify, even though my child will be born in March, but was told by the HR representative that I can't do that. I have tried to research the law, and according to 29CFR825.201, FMLA leave must be concluded within 12 months of the birth of my child, but there is no other information about taking a delay before going on leave. Is it legal for my company to deny me delayed leave?


Asked on 12/02/08, 8:25 pm

1 Answer from Attorneys
Charles Aspinwall Charles S. Aspinwall, J.D., LLC

Re: Delayed FMLA

There is no provision in the law for delaying family medical leave beyond the situation requiring it. To delay leave two months beyond delivery of the child would be to grant leave after the situation which triggered it is over. Your employer is correct. You must take FMLA leave when the situation is ripe for requiring it.

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Answered on 12/02/08, 9:08 pm


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