FAMILY LEAVE LAWS

 

Updated November 2017

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There are laws that give employees the right to take time off from work in the following situations:

 

  • When an employee is very sick 

  • When an employee needs to take care of a newborn baby

  • When an employee needs to take care of a newly-placed adopted or foster child

  • When an employee needs to take care of a sick family member 

 

These laws may be federal (national) laws, Washington state laws, or local laws. This memo is a summary of the Washington state and federal laws that protect employees who need family leave. It does not include local laws. 

 

See also the Legal Voice publication Leave from Work for Survivors of Domestic Violence, Sexual Assault, or Stalking and other documents listed in Resources at the end of this memo.

When Does the New Paid Family & Medical Leave Program Start?

This new paid leave benefit will be available starting January 1, 2020. Learn more about the programs by visiting the Washington Work and Family Coalition website.

When Do I Have the Right to Take Family Leave?

 

Currently, both federal and Washington State law give you the right to unpaid family leave if:

 

1. You have worked for the same employer for a total of at least 12 months (does not have to be 12 months in a row);
 

2. You have worked at least 1,250 hours in the 12 months before taking leave (these 12 months do have to be in a row; this is about 24 hours per week);
 

3. You work for:

  • A private employer with 50 or more employees; OR

  • A federal/state/local public agency. 

 

4. And you need to be taking leave for at least one of the following situations:

  • Give birth to and/or care for a newborn child;

  • Care for a newly-placed adopted or foster child;

  • Care for your spouse, your registered domestic partner, child, or parent if he or she has a serious health condition (“parent” in this law includes biological parents, step-parents, and foster-parents);

  • Care for yourself when you can’t work because of a serious health condition (including disability-related symptoms and treatment);

  • Care for your spouse, son, daughter, parent or next of kin who is a covered service member recovering from a serious illness or injury sustained in the line of duty on active duty; OR

  • Deal with certain situations (“qualifying exigencies”) that have come up because your spouse, child, or parent is on active military duty and has been notified he or she will be called to active duty, or in support of a contingency operation.

 

State law also gives you the right to unpaid leave if you work for an employer with 8 or more employees and you need time off for a pregnancy-related illness, disability, or childbirth. This leave is in addition to the family leave described above. There is no set time limit for this leave, but it must be temporary because pregnancy and childbirth are considered “temporary disabilities” by law. 

 

If you are the spouse of a service member (a member of the armed forces of the United States, National Guard, or Reserves), you work an average of 20 or more hours per week, and your spouse has been notified of an impending call or order to active duty or has been deployed, you have the right to 15 days of unpaid leave per deployment after the military spouse has been notified and before deployment or when the military spouse is on leave from deployment.

Note: There are special rules for airline flight crew employees. See the U.S. Department of Labor Fact Sheet #28J.

 

 

What If I Work for an Employer with Less Than 50 Employees?

 

Then you are not covered by federal law, but state law does allow you to use as much of your paid sick leave or other paid time off to care for:

 

1. Your child with a health condition that requires treatment or supervision or for preventive health care for a child; OR

 

2. A spouse, registered domestic partner, parent, parent-in-law, or grandparent who has a serious health condition or an emergency condition. 

 

You must earn the leave before you use it. You must follow the terms of any collective bargaining agreement or employer policy that applies to the leave.

 

Remember, the “50 employees or more” requirement does not apply to employees of state or local public agencies, or local educational agencies.

 

And, as noted above, pregnant people who work for employers with 8 or more employees have the right to take family leave for pregnancy-related illness, disability, or childbirth. If you work for an employer with fewer than 8 employees, talk to a lawyer because you may still have some leave rights. See the Legal Voice publications listed in the Resources section below for information on how to find and work with a lawyer. For more information on how the state law and how the federal and state law work together, see the Washington State Department of Labor and Industries publication about the Washington State Family Leave Act.

 

 

What If I Work for an Employer with Less Than 50 Employees and I Have No Sick Leave or Vacation Leave?

 

You may not have a right to family leave. It is possible, however, that local laws may give you the right to take some leave. For example, Seattle requires paid sick and safe days for all employees working for employers with 10 or more employees. See the Resources section for more information.

 

Your employer could also choose to give you time off, paid or unpaid, even if they don’t have to. 

 

 

What If I Am Only a Part-time Employee?

 

Part-time or full-time status doesn’t matter. What matters is whether you have worked enough hours. Even if you haven’t, you may still use your earned paid sick leave (or other paid time off) or take pregnancy-related family leave as discussed above. 

 

 

How Much Leave Can I Take?

 

If you work for an employer with 50 or more employees, or work for a state or local public agency or educational agency, you can take 12 weeks of unpaid leave. There are limits on how often you can take this leave.

 

  • Family Leave Limits for Pregnancy and New-Child Care: If you leave work to care for a newborn or newly-placed adopted or foster child, you can only take leave during the first 12 months after the child is born or placed with you. 

 

  • Family Leave Limits for Military Caregiver: If you take family leave for those reasons described above related to military service members, you can take 26 weeks of leave in a single 12-month period to care for the service member. If you take military “qualifying exigency” FMLA leave, you are entitled to take up to 12 weeks of leave in the applicable 12-month period.

 

 

Can I Get Paid for My Leave?

 

Your employer does not have to pay you your daily wages during your family leave. But all employers in Washington state, even if they have only one employee, must let you use your available paid leave (if you have it), such as sick leave or vacation, to care for yourself or a sick family member. Note: This law does not cover leave needed to care for a newborn child; just the leave you need for pregnancy-related illness, disability, or childbirth. Some local laws require employers to provide some paid sick leave, such as Seattle, Tacoma, Spokane, and SeaTac. See "Local Laws" in the Resources section below.

 

Some employers choose to offer paid leave or short-term disability insurance to cover leave needed for pregnancy-related illness, disability, or childbirth. Your employer must treat pregnancy-related illness, disability, or childbirth the same as it would other temporary disabilities. 

 

If your own disability, medical condition, or pregnancy makes you unable to do your job yet you are able to perform another job, but cannot find one, you may qualify for Unemployment Benefits from the Washington Employment Security Department. See the Resources section for more information. 

 

 

Do I Have to Use My Paid Sick Leave or Vacation Leave? 

 

Maybe. Your employer can make you to use your sick, vacation, or other paid leave during your family leave, but they don’t have to.

 

 

Do I Have to Use My 12 Weeks All At Once?

 

Maybe. If you need treatment for a serious illness or need to care for an ill family member, you can take leave in smaller blocks or work on a reduced-hour schedule (called “intermittent leave.”) You may need a note from a doctor or other healthcare provider.

 

You can use your leave in smaller blocks or work on a reduced-hour schedule to care for a newborn or newly-placed child, but only if your employer agrees. 

 

 

What Do I Have to Do Before I Take Leave?

 

There are a few things you have to do before you leave work. 

 

1. Give notice to your employer: Your employer needs to know that you are taking leave that might be covered by family leave laws. It is your responsibility to give your employer enough information to put them on notice that your absence might be covered by family leave laws. You don’t need to tell them exactly by which law your leave is covered, but you must say more than “I won’t be in today because I’m not feeling well.” If you know you will be absent for 3 or more consecutive days, share that with your employer. If you have a relapse of an illness for which you have taken medical leave before, share that with your employer. 

 

  • When taking leave to care for a new child when the birth or placement is foreseeable, you must give your employer 30 days’ notice before your leave starts. If the birth happens unexpectedly or a child suddenly becomes available for placement, notify your employer as soon as possible.
     

  • If you or a family member has a serious health condition, you must give 30 days' notice, if possible, of your intention to take leave (including military caregiver and exigency leave). If the condition happens suddenly, you must tell your employer as soon as possible. You must also at least try to schedule treatment so that it will not “unduly disrupt” the employer’s operations.
     

  • When taking leave to spend time with your family before deployment of your military spouse or when your spouse is on leave from deployment, you must notify your employer within five business days of receiving the official notice of deployment or leave.

 

2. Follow your employer’s policies: Your employer may have other notice and procedural requirements for requesting leave; ask your employer for a copy of the leave policies so that you know what they are and so you can meet those requirements. If you need help meeting them or evaluating whether the requirements are proper, you should talk to a lawyer if possible. But remember that you need to reasonably cooperate with your employer.

 

 

Do I Have to Prove to My Employer That I Need Family Leave?

 

Your employer has the right to ask you for a written certification, from a healthcare provider, of a serious health condition. Your employer must make this request within 5 days of when you give them notice. The certification must include:

 

  • The date when the serious health condition started;

  • How long it may last;

  • Relevant medical facts known by the healthcare provider; AND

  • A statement from the healthcare provider that either the employee is needed to care for a family member or that the employee cannot perform her or his job 

 

If your employer wants clarification about the certification, they must put in writing what other information they need. You then have 7 more days to give your employer that information. If your employer still is unclear, a management official (but not your supervisor) may contact your health care provider only to clarify the certification or to verify your health care provider’s handwriting. Your employer must first get your permission to contact your health care provider. You do not have to give them your permission. But if you refuse to give your permission and you do not otherwise clarify the certification, your employer has the right to deny your leave. 

 

If your employer disagrees with the medical professional’s opinion, the employer can ask for a second opinion. Your employer must pay for this second opinion. But the second opinion cannot come from a healthcare provider that is regularly employed by your employer. 

 

If the two opinions are different, both the employee and employer must together choose a third healthcare provider who will make the final decision. Your employer must pay for this third opinion. 

 

Your employer can make you certify your serious health condition again while you are on leave, and they can make you submit a certification that you are able to resume work when you return from leave.

 

 

What Kinds of Illnesses Qualify as “Serious Health Conditions”?

 

There is no list of illnesses that qualify for family leave. Instead, the law defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that requires either inpatient care or continuing treatment by a healthcare provider. 

 

Some examples of serious health conditions include cancer, severe migraine headaches, and severe depression. However, minor medical problems, such as the common cold, flu, routine dental problems, or cosmetic treatments, are not covered unless medical complications happen because of them.

 

 

Who Is a “Covered Service Member” for Military Caregiver Leave? 

 

A covered service member is: 

 

  1. A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; OR
     

  2. A veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness if the veteran was a member of the Armed Forces at any time up to 5 years before the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

 

 

What Is Different about Military Family Leave? 

 

The U.S. Department of Labor offers a thorough publication answering frequently asked questions about Military Family Leave provisions of the Family and Medical Leave Act.

 

 

What If the Child and I Do Not Have a Legal or Biological Relationship?

 

You can take leave if you qualify as a "parent" to the child at the time you request leave. To qualify:

  1. You intend to assume or have assumed the responsibilities of a parent; AND
     

  2. You provide the child with day-to-day care and/or financial support. 

 

The legal term for this is "in loco parentis." A grandparent, aunt, uncle, girlfriend, or boyfriend of a biological parent might qualify as a "parent" to the child under family leave laws. Whether you are "in loco parentis" will depend on your particular circumstances. You may have to give your employer a written statement saying that you have a qualifying relationship with the child.

 

 

Can I Take Leave to Care for My Adult Child?

 

Yes, if:

A. Your child is age 18 or older and is incapable of taking care of himself or herself because of a mental or physical disability; OR

B. Your child is a current member of the Armed Forces (including the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

 

 

My Spouse and I Work for the Same Employer. Can We Both Take Leave at the Same Time?

 

It depends on the situation. If you are both caring for a healthy newborn child, a newly-placed child, or a sick parent, the total number of weeks that you and your spouse may take in any twelve-month period is limited to a combined total of twelve weeks. 

 

If you are caring for a seriously ill child or your own serious health condition, you and your spouse can each take twelve weeks of leave within a twelve-month period. 

 

 

What If We Are Not Married?

 

Both federal and state law give everyone, regardless of marital or partnership status, the right to take time off to care for a seriously ill child or parent.


Many employers and unions provide leave benefits for unmarried partners. Also, local family and medical leave ordinances may cover unmarried partners.


If you are state registered domestic partners, you qualify for state family leave only.

 

 

Will I Keep My Employee Benefits While I’m On Leave?

 

Usually while you are on leave you cannot add to your vacation time, sick leave, retirement benefits, or other benefits that you earn while working. An employer of 50 or more employees must give you the option of keeping your health insurance coverage going while on leave. If you share the cost of your health insurance coverage with your employer, you will have to make a plan with your employer to keep paying your share while you are on leave. 

 

 

Do I Have to Do Anything While I’m On Leave?

 

Your employer can ask you to report on your intent to return to work. Your employer may also ask for recertification of medical conditions on a “reasonable basis” if you are on leave because you or your family member is sick or injured. “Reasonable basis” means the employer cannot ask for recertification in a way that is harassing or discriminatory.

 

 

Will I Get My Job Back When I Am Ready to Return to Work?

 

Your employer must give you the same or an equivalent job (same pay, benefits, and working conditions) within 20 miles of your previous job when you come back from leave (two exceptions are noted in the next paragraph). Your employer cannot fire you for taking family leave as allowed by law. It is illegal for your employer to interfere with your right to take this leave by harassing you, refusing to promote or hire you, or transferring you to a job that is not equivalent to the one you had before you took leave. 

 

There are two notable exceptions to this rule: 

 

  1. If you are a teacher at a local educational agency, special rules apply when you need intermittent leave or need leave near the end of a school term. Talk to your union representative or administration office for more information.
     

  2. If you are a salaried employee among the highest paid 10% of the salaried employees within 75 miles of your worksite, an employer may deny you your job back under certain circumstances. Employees in this category are called "key employees." For more information, see the U.S. Department of Labor website.

 

 

What Happens If I Don’t Go Back to Work at the End of My Leave?

 

If you choose not to go back to work after your leave, you may have to pay back your employer for the health insurance premium paid during your leave. 

 

If you cannot go back to work because you still need to care for your or your family member’s serious health condition or due to circumstances beyond your control, you will not have to pay your employer back for your health insurance premiums. But in order to prove this, your employer can make you give written certification from a healthcare provider explaining the reason you cannot go back to work. If you think that you may not be able to return to work at the end of your leave, think about getting a certification before you notify your employer just in case your employer asks for it. 

 

 

Can I Be Treated Differently Than Other Employees Because I am Pregnant?

 

It is illegal for an employer to treat you differently in a negative way because you are pregnant; this is considered workplace discrimination. If your employer is discriminating against you because you are pregnant, including refusing to allow you to take family leave, you should contact a lawyer and/or the Washington Human Rights Commission at 1-800-233-3247. See the Legal Voice memos Employment Discrimination and Sexual Harassment at Work, or the Resources section for more information. Also see the information in the next section about your rights under federal and state laws.

Your employer can, however, treat you differently after granting certain pregnancy accommodations requests. Washington State’s Healthy Starts Act allows pregnant workers restroom breaks, food and water, and other special accommodations that may not be offered to other workers. See the Legal Voice memo Know Your Rights: Pregnancy and Work.

 

 

What Can I Do If I Think My Employer Has Violated Family Leave Laws?

 

It is illegal for your employer to interfere with, restrain, or deny you protected family leave, or to discharge you or discriminate against you for taking protected family leave. You have the right to bring a lawsuit in state or federal court and to file complaints with state and federal agencies that enforce those laws. You only have a certain amount of time to file a complaint or lawsuit. For more information on employment discrimination, what you can do about it and how much time you have, see the Legal Voice memo Employment Discrimination.

 
Resources
 

Washington State Law

 

The Family and Medical Leave Act – Federal

Local Laws

For Domestic Violence Survivors 

 

For People Living with Disabilities 

 

Unemployment

 

Related Legal Voice Publications

 

 

This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.

This information is current as of January 2015. Updated by Inessa Baram-Blackwell and Chloë Phalan, 1/20/15. Resources updated 11/1/17.

Legal Voice gratefully acknowledges the work of Katherine Chamberlain, June Krumpotick, and Janet Chung on previous versions of this memo.

© 2015 Legal Voice — 1-206-682-9552

(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)

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