Required Leave for Part-Time Pregnant Employee (10/10)

We have a part-time employee who is pregnant.  She works between 20 and 30 hours a week.  Do we have to provide her with leave under the FMLA?  And, if we do not, how much leave do we have to provide? The key to your question may be the number of hours the part-time employee works.  If the part-time employee works enough hours to be eligible for leave under the Family and Medical Leave Act (FMLA), then she is entitled to up to 12 weeks of job protected leave.  If she does not, then you are required only to provide her with the same amount of leave that you normally provide employees who have temporary medical conditions and who are not covered by the FMLA.        The FMLA, the federal law that applies to employers with 50 or more employees and all public agencies and schools, allows eligible employees to take up to 12 weeks of job-protected leave for various family and medical reasons, including for an employee’s own serious health condition and to care for a newborn.  An employee who has given birth can qualify for FMLA leave both during the time prior to and immediately after birth when she is unable to work because of a serious health condition and, once cleared to return to work, for any remaining time to care for the newborn.  An employee is eligible for FMLA leave if she (1) has worked for the employer for at least 12 months (not necessarily consecutively); (2) has worked for the employer for at least 1,250 hours in the previous 12 months; and (3) works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees.       Whether an employee has worked the minimum 1,250 hours is determined by counting the actual number of hours the employee has worked in the previous 12-month period.  Paid vacations, holidays, and sick leave are not counted.  Note that the 1,250 hours required for FMLA coverage works out to be about 24 hours a week.  If the employee meets these eligibility criteria, then she should be granted FMLA leave, which guarantees her job reinstatement and other benefits such as continuation of health insurance.      If the employee is not eligible for FMLA (for example because she has not worked the prerequisite hours), then you are not required to provide her leave under the FMLA.  However, she is still protected by the Pregnancy Discrimination Act (PDA).  The PDA applies to employers with 15 or more employees and requires employers to treat women affected by pregnancy, childbirth, or related medical conditions the same as employees who are on leave for other temporary medical disabilities.  Thus, because the PDA is an antidiscrimination law rather than a law mandating leave, it does not require covered employers to grant pregnancy leaves.  Instead, it only entitles pregnant employees to the same leave and benefits granted to nonpregnant employees with temporary medical disabilities.  The Equal Employment Opportunity Commission (EEOC) guidelines interpreting the PDA provide that policies relating to the commencement and duration of leave, availability of leave extensions, accrual during leave of seniority and other accrued benefits and privileges, insurance coverage, and reinstatement after leave must apply equally to pregnancy and other temporary disabilities.  In other words, if you allow employees who are not covered by the FMLA to take leave for temporary medical conditions and guarantee job reinstatement, then you must provide pregnant employees with the same leave opportunities.      Finally, you also should check state law for any additional pregnancy leave obligations.  Some states, such as California, have laws guaranteeing pregnant employees leave and reinstatement rights that apply to all pregnant employees regardless of the number of hours worked or the employee’s length of service.