Unfortunately, the FMLA regulations do not squarely address this situation. Employers are required to provide Notice of Eligibility and Notice of Rights and Responsibilities (R&R) to employees within five (5) business days of the leave request or when they become aware that an employee’s leave may be for a FMLA-qualifying reason. However, employee eligibility is determined as of the beginning of leave.

With pregnancy in particular, employees often notify their employer about their potential leave as soon as they know the happy news and may not yet meet the eligibility requirements. In that case, the best practice is to send the eligibility and R&R notices and direct the employee to submit an official leave request at a later time. This way, the employer will have met its obligations to send the eligibility notice and the notice of R&R in a timely manner. See 29 C.F.R. §825.300. While the regulation does not require it, it is also a good idea to follow up with that employee closer to their due date.