You are expecting. You have a baby bump, made arrangements for a baby shower, are busy shopping for a crib, checking out the latest in strollers, and are just plain excited. However, despite the excitement, you may be concerned with your job status. How will your employer accept your time off for maternity leave? How will your co-workers react to you missing substantial time in the office?
Family Leave Act
In 1989, the Washington state legislature passed the Family Leave Act, or FLA, which provided numerous benefits to those are compelled to miss work for family reasons. As we will see, some of those provisions are still relevant and in force today.
Family Medical Leave Act
In 1993, the United States Congress passed the Family Medical Leave Act of 1993, known as the FMLA, which provided for certain rights for individuals dealing with personal or family medical issues. Per the “Supremacy Clause” of the United States Constitution, federal law will pre-empt state law. Per the Constitution, powers not granted to the federal government fall under state control. Therefore, the FMLA, as a federal law, trumps the FLA, a state law. However, gaps left by the FMLA can be filled by the FLA. Therefore, the FLA is still partially in force when there are items not covered by the FMLA.
Per the FMLA, a person is granted 12 weeks of unpaid leave after childbirth. That is to say, an employer must provide an employee who gave birth with 12 weeks of leave and is barred from dismissing that person from her job. Note that the employer has no obligation, per the FMLA, to pay the employee for maternity leave. Some companies provide employees with paid time off post-partum but that is not mandated by the law.
Per the FLA, someone can receive up to 24 weeks of time off post-birth if recommended by a doctor. That means that an employer cannot take an adverse action against an employee who gives birth up to 24 weeks of time off. This aspect of the FMLA has not been superseded and is therefore still in force.
The bar against adverse employment action post-birth does not apply in all cases. Under both the FMLA and FLA, it is only applicable for companies of 50 or more employees. Those employed at smaller businesses do not have such protections.
Beginning on January 1, 2020, the FLA will start being more generous. Then, maternity leave will be up to 12 weeks and that will be paid leave. Lower wage workers will be entitled to pay that is above their current pay grade. The paid leave will be applicable to both new fathers and new mothers.
Moreover, this will apply to any new additions to a family, not just a biological birth. People who adopt a small child will also be eligible for these new FLA rules.
As before, small businesses will not be covered by these new FLA rules.
Are you facing employment discrimination? Contact the experienced attorneys at HKM Employment Attorneys of Seattle.