Although your organization’s heart might be in the right place to grant leave prior to the birth of one’s child, this does not always constitute an FMLA-qualified leave. The FMLA defines incapacity due to pregnancy as a serious health condition that qualifies for leave. If an employee is unable to work or perform other regular, daily activities because of pregnancy, they may be eligible to take FMLA leave. The key word there is “incapacity.” If you are allowing your employees to take two weeks of leave prior to their due date and they are not incapacitated due to their pregnancy, it is not FMLA leave. You are actually providing them with a corporate benefit of two weeks of pregnancy leave. Assuming that the employee only becomes incapacitated on the date of delivery, your employee may be due a total of 14 weeks of leave (assuming no statutory benefits are included that they’ve not utilized in the same benefit year) ꟷ two weeks of corporate leave prior to delivery and 12 weeks of federal FMLA after the birth.