Changes to the Washington State Family Leave Act resulted in some confusion as to the interaction between the state and federal laws where an employee’s leave is due to complications of pregnancy or disability from childbirth.
The Washington State Department of Labor & Industries recently issued a “Washington State Family Leave Act Q&A,” which explains the interaction between the FMLA, Washington State Family Leave Act (FLA) and the state Human Rights Commission regulation (WAC 162-30-020) that requires employers with eight or more employees to provide an employee with a leave of absence while she is sick or temporarily disabled because of pregnancy or childbirth.
The new Q&A provides, in part as follows:
Employers must treat a woman on pregnancy related leave the same as other employees on leave for sickness or other temporary disabilities. This means that employers must provide the same disability leave benefits to women who are pregnant or have recently given birth as they provide to any other employee. This also means that disabilities related to pregnancy or childbirth cannot be excluded from an employer’s other leave or benefits or policies. This rule applies whether or not those employees qualify for federal FMLA or state FLA. This leave for pregnant women is in addition to their other benefits for family leave purposes.
The amount of disability leave for pregnancy is that which is medically necessary to address any disability due to pregnancy or childbirth, based on the woman’s individual condition. Although the amount of disability leave is not set in any RCW or WAC, six to eight weeks is commonly recommended by health care providers for childbirth without complications. However, the amount of disability leave can vary depending on the individual’s situation. Complications due to pregnancy, childbirth, or related conditions may result in expanded pregnancy disability leave.
The Q&A also clarifies the fact that the state FLA is in addition to pregnancy disability leave and leave for a disability related to childbirth:
Pregnancy leave may run concurrently with the federal FMLA. FLA leave must be taken after the woman has exhausted her pregnancy disability leave, however. Once a woman’s leave for pregnancy disability ends, she is entitled to use the balance of her available sick leave under the federal FMLA and state FLA to care for the newborn; for a sick spouse, child or parent; or other personal illness she may have during the 12-month period.
For all other qualifying conditions (e.g. other than pregnancy or childbirth related disabilities) the FLA may run concurrently with the FMLA. It is only when a woman takes leave for pregnancy-or-childbirth-related disability that the FMLA and FLA do not run concurrently (e.g., the FMLA will run concurrently with the pregnancy-or-childbirth-related disability, but the FLA will not).
Practical Guidelines
Employers with eight or more employees cannot limit how much time off an employee takes for pregnancy and childbirth-related disability. For example, if the employee is ordered to bed rest in her second trimester and spends 15 weeks of her pregnancy off work as a result, and then has complications from childbirth that take 10 weeks of recovery time, she would be off work for 25 weeks just for disabilities related to pregnancy and childbirth. This is an unlikely scenario, but is included to illustrate that leave is not limited to a set number of weeks, but is the period that is medically necessary, however long it takes.
The law is unclear on the availability of a “business necessity” defense. It is included in a different subsection of WAC 162-30-020, but not in the subsection on providing leave. The “leave” section states, “An employer shall provide a woman a leave of absence for the period of time that she is sick or temporarily disabled because of pregnancy or childbirth.”
If the state FLA applies (and its criteria for applicability are virtually identical to the federal FMLA), then the employer needs to provide FLA leave in addition to time off for disabilities related to pregnancy and childbirth. In other words, in the scenario described above, if the employee qualified for state FLA leave, she would be entitled to take all 12 weeks of it after taking 25 weeks off for her disabilities related to pregnancy and childbirth.
In most cases, employees will be disabled only from pregnancy and childbirth for 6-10 weeks. In such cases, the non-disability part of FLA leave will run concurrently with FMLA leave. For example, if a woman took eight weeks of disability leave for her pregnancy and childbirth and then wanted to take as much leave as she could under the applicable laws, her FMLA leave would run out after week 12. Her FLA leave would start at week nine (when she quit being disabled), run concurrently with the FMLA for four weeks, and then continue running for another eight weeks, giving her a total of 20 weeks off.
The Q&A encourages employers to consult with the Washington State Human Rights Commission to learn how to address extended disability leave issues. However, since the Q&A was just released in September, the Commission may not have much additional guidance on it at this point.
An experienced employment law attorney who is familiar with all three laws also can provide assistance applying the three laws in specific cases.
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Karen Sutherland is the chair of the Employment and Labor Law Practice Group at Ogden Murphy Wallace, PLLC, and chair of the King County Bar Association Bar Bulletin Committee. Her practice focuses on employment and labor law and complex litigation. She can be reached by email at ksutherland@omlaw.com.
