Washington's Department of Labor and Industries (DLI) recently issued some FAQs about Washington's Family Leave Act (see www.lni.wa.gov/WorkplaceRights/files/FamilyLeaveFAQs.pdf) and its interaction with the federal Family and Medical Leave Act (FMLA), as well as Washington's regulation requiring employers to provide pregnancy disability leave for the time a woman is disabled due to pregnancy and childbirth ("pregnancy disability leave"). Employers with 50 or more employees should take note of DLI’s clarification of their obligations under these overlapping laws.
Both Washington’s Family Leave Act and the FMLA require employers with 50 or more employees to provide leave to employees for their own serious health condition, the serious health conditions of certain relatives, and the care of a newborn baby. Washington’s Family Leave Act has one difference from FMLA: it does not allow leave to run concurrently with pregnancy disability leave.
Although it has been the law for some time that leave under Washington’s Family Medical Leave law could not run concurrently with pregnancy disability leave, it has never been clear how an employer was to administer FMLA, pregnancy disability leave, and Washington’s Family Leave Act in light of the overlapping coverage of these laws and some differences in the protection that each law provides. DLI's new FAQs make clear DLI’s position that although pregnancy disability leave may run concurrently with FMLA, pregnancy disability leave may not run concurrently with leave under Washington’s Family Leave Act.
What does this mean for employers with 50 or more employees?
Using the most common example of a woman who has a normal pregnancy and childbirth, the employer must offer a female employee up to 18 weeks of total unpaid leave after the baby is born. Assuming the standard six weeks of post-birth disability prescribed by most doctors, the first six weeks of leave will be pregnancy disability leave and FMLA leave, running concurrently. The second six weeks of leave when a woman is no longer disabled from childbirth, will be leave under both FMLA and Washington’s Family Leave Act. The third and final six weeks will be leave under Washington’s Family Leave Act.
Questions exist about DLI's interpretation of the law. The FAQs are interpretive guidelines only and are by no means the final word on this subject. The agency plans to issue proposed regulations some time in 2008, at which time employers will be offered an opportunity to comment on those proposed regulations. In the meantime, the safest approach is to follow the FAQs. If you would like to discuss this development or any other family and medical leave issues, contact Margaret Barbier (mlbarbier@stoel.com), Keelin Curran (kacurran@stoel.com) or the Stoel Rives attorney with whom you regularly consult. For a list of attorneys in the Labor and Employment group, click here.