Maternity and Parental Leave Laws in West Virginia

West Virginia state law requires many employers to provide reasonable accommodations for employees who can't work during pregnancy, and one accommodation might be the right to take leave from work. So does the federal Pregnant Workers Fairness Act (PWFA).

In addition, the federal Pregnancy Discrimination Act (PDA) prohibits employers from discriminating against employees because of their pregnancy, which might sometimes give them the right to take time off work.

Unlike some states, West Virginia has no state family leave law. But if you work for one of the larger companies in West Virginia, the federal Family and Medical Leave Act (FMLA) gives you the right to take unpaid leave for:

• pregnancy
• childbirth, and
• parenting.

Let's look at the laws that protect maternity and paternity leave rights for employees in West Virginia.

Maternity Leave During Pregnancy in West Virginia

Three types of state and federal laws protect you when you need to take pregnancy leave in West Virginia:

• laws requiring reasonable accommodations during pregnancy
• laws prohibiting pregnancy discrimination, and
• laws that require pregnancy leave.

West Virginia's Law Requiring Accommodations for Pregnancy

The West Virginia Pregnant Workers' Fairness Act (WVPWFA) applies to employers with at least 12 employees. The law requires covered employers to provide reasonable job accommodations for pregnant employees who need them. (W. Va. Code §5-11B-1(2).)

Reasonable accommodations are changes to your job duties or work that allow you to keep your job despite the limitations caused by your pregnancy. If you provide documentation from your health care provider stating that you have limitations due to pregnancy, your employer should give you an accommodation, unless providing it would create undue hardship for the employer.

The WVPWFA uses the same definition of "undue hardship" as the Americans with Disabilities Act (ADA)—significant expense or burden for your employer considering the following:

• the nature and cost of the accommodation
• the employer's size and resources, and
• the nature of the business.

The West Virginia law doesn't list the types of accommodations employers must provide. But if your health care provider says you need time off work as an accommodation (say you're put on bed rest for the last month of your pregnancy), your employer must either accommodate your restriction or prove that doing so would be an undue hardship.

Federal Pregnancy Discrimination Laws

The federal Pregnant Workers Fairness Act (PWFA) works much the same way as West Virginia's law. The PWFA requires employers with at least 15 employees to provide accommodations to pregnant employees. (42 U.S.C. § 2000gg-1.) Under this law, reasonable accommodations can include time off work if it's medically necessary.

The Pregnancy Discrimination Act doesn't require West Virginia employers to give pregnant employees time off work. Instead, it requires employers to treat employees who can't work due to pregnancy the same as employees who are temporarily disabled for other reasons. (42 U.S.C. § 2000e(k).)

For example, if your company lets employees take time off for a temporary disability like a broken leg or heart condition, you must be allowed to take the same time off when you can't work because of pregnancy.

The Family and Medical Leave Law (FMLA)

The federal FMLA gives eligible employees in West Virginia the right to take up to 12 weeks off work in a one-year period for serious health conditions and parenting. (29 C.F.R. § 825.100.) But the FMLA applies only to employers in West Virginia with at least 50 employees, and you must have worked for a covered employer for:

• at least 12 months, and
• at least 1,250 hours during the 12 months immediately before your leave begins.

Pregnancy is considered a serious health condition under the FMLA law. If you qualify, you can use the FMLA to take time off when you can't work because of your pregnancy and childbirth. You can also take intermittent FMLA leave for prenatal care, like routine check-ups and doctor visits.

(Learn more about using FMLA leave for pregnancy and disability.)

Unpaid Parenting Leave in West Virginia

West Virginia doesn't have a state parenting or family leave law, but the federal FMLA gives employees who work for larger companies the right to take time off to bond with a new child. If you qualify for FMLA, you can take unpaid maternity or paternity leave, whether the child is yours by:

• birth
• adoption, or
• foster placement.

Your parental leave is part of the total 12-week leave entitlement the FMLA provides. So, if you use two weeks of FMLA leave during your pregnancy, you'll have ten weeks left to use for parenting leave.

If your employer denies you medical or parental leave before or after childbirth or refuses to give you your job back when your FMLA leave is over, you have the right to sue your employer. Learn about what you can win in an FMLA case.

Paternity Leave Rules Under the FMLA

If you're married to someone who works for the same company, your employer can limit the amount of FMLA parental leave to 12 weeks for both of you—meaning you have to share those 12 weeks. (29 U.S.C § 2612(f)(1).) But whatever portion of your own 12 weeks of FMLA leave you don't use for parenting will still be available to you for other reasons.

Under the FMLA, this limit applies only to parents who are married to each other (including same-sex couples). It doesn't apply to parents who live together without being married.

Part-Time or Reduced Schedule Leave Under the FMLA

The FMLA allows employees to take their pregnancy or medical leave a little at a time if it's medically necessary. For example, if you have a prenatal appointment with your OB-GYN, you can use a couple of hours of your FMLA leave and then go back to work.

The same is true for pregnancy-related ailments that don't last all day. If, for instance, you have severe morning sickness for part of the day, you might need a few hours off several days each week in early pregnancy.

But the rules are different for parental leave. If you want to use your FMLA parenting leave a little at a time—for example, by returning to work part-time or taking some of your leave when the baby is born and some at a later point—your employer must agree to it. If your employer agrees to let you use your parenting leave intermittently, you must finish your time off within one year of your baby's birth.

Getting Paid During Your Maternity or Paternity Leave in West Virginia

FMLA leave is unpaid, and West Virginia doesn't have a paid family leave law or paid short-term disability benefits. To be paid during your time off, you can use your accrued paid leave (like sick days, vacation, or PTO). Your employer can actually require you to use this paid time off when you take leave.

Your employer might offer benefits that pay at least some of your wages while you're on leave, such as:

• maternity and paternity leave benefits
• parental benefits, or
• group short-term disability insurance.

Talk to your HR representative or manager (and check your employee handbook) to find out what types of leave are available to you.

You might also want to look into getting private short-term disability insurance to cover your pregnancy.

_{Updated September 8, 2023}