Supplemental materials for LEAP 2025 session Pregnant Workers — New Laws & Evolving Expectations
Q: When do absences due to pregnancy- and childbirth-related conditions become leave due to pregnancy- and childbirth-related conditions? For example, suppose an employee states she is going to be absent because she is not feeling well due to pregnancy and is going to see her doctor. We as her employer consider the day to be covered by the Pregnant Workers Fairness Act, so there’s no need for a doctor’s note. But if she continues to need time off because she is not feeling well due to pregnancy, at what point have we moved from time off for a normal pregnancy symptom and into leave? Should we follow the FMLA rule of thumb of three consecutive days? So one day here and there is covered by the PWFA. But for three or more days, should we ask her health-care provider to certify that the condition is related to pregnancy and estimate the probable duration of her leave?—Kristina, Illinois
A: The FMLA and the PWFA do not always play well together. The PWFA provides reasonable accommodations for common pregnancy-related limitations. These accommodations can include unpaid time off to see a doctor. Such requests should be routinely granted with minimal documentation beyond the request.
The FMLA provides unpaid leave for a serious health condition, including time off for routine prenatal visits as well as time off for other complications that may require longer recovery times. These would also be covered under the PWFA as a reasonable accommodation.
The best approach is to consider each law separately and log absences under both. And while you are supposed to require minimal documentation for pregnancy-related absences under the PWFA, the FMLA allows employers to get medical certifications for covered absences for a serious health condition, including pregnancy complications.
Employers can get the information they need to log FMLA absences while simply noting the same absence as a PWFA accommodation. In the scenario above, log all the time off as a PWFA accommodation at the same time as you log the longer, FMLA-covered absences as FMLA leave.
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