We occasionally hear from clients asking if their employees have to be employed for 12 months and work 1,250 hours to qualify for the Pregnant Workers Fairness Act (PWFA) or if they qualify as soon as they begin employment. The question appears to conflate aspects of the PWFA with a similar but distinct federal labor law—the Family and Medical Leave Act (FMLA). Answering it requires a brief summary of both Acts.
The FMLA entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for a qualifying reason. Qualifying reasons include the birth of a child and to care for the newborn child within one year of birth. Covered employers include all public-sector employers and any private-sector employer that employs 50 or more employees in 20 or more workweeks in either the current or previous calendar year.
Generally, employees are eligible for FMLA leave if they meet all of the following criteria:
Employees don’t qualify for leave under the FMLA as soon as they begin employment. To qualify for leave under the FMLA, they would have to meet the requirement of having had worked for the employer for at least 12 months and having had worked at least 1,250 hours in the 12 months preceding the start of leave. However, this hours-worked/length-of-employment requirement doesn’t apply to employees seeking leave under the PWFA.
The PWFA requires covered employers to provide qualified employees/applicants with reasonable accommodations for qualifying limitations unless doing so would cause the employer an undue hardship. Unlike the FMLA, the PWFA doesn’t require an employee to work a certain number of hours or for a certain time span to qualify for leave.
Under the PWFA, covered employers are private- or public-sector employers with 15 or more employees. Qualifying limitations include known physical or mental limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Qualified employees/applicants are those who can perform the essential job functions with or without a reasonable accommodation. Reasonable accommodations are changes in the work environment or changes in how tasks are carried out. And while “undue hardship” isn’t clearly defined, it generally means accommodations that would result in significant difficulty or expense for the employer.
Although the PWFA doesn’t require the employer to provide the employee/applicant with leave per se, there may be circumstances in which a reasonable accommodation includes leave to recover from childbirth or other medical conditions related to pregnancy or childbirth. Note, however, that an employer cannot require an employee to take leave if another reasonable accommodation would let the employee keep working. Again, access to this accommodation isn’t contingent on hours worked or length of employment but is instead dependent on whether such an accommodation is reasonable to address a known qualifying limitation and does not pose an undue hardship to the employer.
It’s important to be familiar with the differences between the FMLA and the PWFA. Although they are similar, an employee who may not qualify for leave under the FMLA may still be entitled to accommodations under the PWFA. If you aren’t certain how to handle an employee’s accommodation request, reach out to your employment counsel.
Garrett Kitamura is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at gkitamura@parsonsbehle.com.
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