West Virginia law requires many employers to provide reasonable accommodations for employees who are unable to work during pregnancy, which may include the right to take leave from work. In addition, the federal Pregnancy Discrimination Act (PDA) prohibits employers from discriminating against employees because of their pregnancy, which may give them the right to take time off work, in some cases. And for those who work for larger companies in West Virginia, the federal Family Medical Leave Act (FMLA) gives them the right to take unpaid leave for pregnancy, childbirth, and parenting. (Although some states have their own family leave laws, West Virginia is not one of them.)
There are three types of laws that might protect you if you need pregnancy leave: laws requiring reasonable accommodations during pregnancy, laws prohibiting pregnancy discrimination, and laws that require pregnancy leave.
The West Virginia Pregnant Workers' Fairness Act, passed in 2014, requires employers with at least 12 employees to provide reasonable accommodations for pregnant employees who need them. If you provide documentation from your health care provider stating that you have job limitations due to your pregnancy, your employer must give you a reasonable accommodation—changes to your job duties or work—unless providing it would create undue hardship for the employer. The law doesn't list particular types of reasonable accommodations employers must provide.
If your health care provider says you need time off work as an accommodation (for example, because you are put on bed rest for the final month of your pregnancy), your employer will have to either accommodate your restriction or show that it would be an undue hardship. An accommodation creates an undue hardship if it would create significant expense or burden for your employer.
The Pregnancy Discrimination Act does not require employers to give pregnant employees time off work. However, it does require West Virginia employers to treat employees who are unable to work due to pregnancy just as it treats employees who are temporarily disabled for other reasons. For example, if your company lets employees take time off for a temporary disability like a broken leg or heart condition, then it must allow pregnant employees to take the same time off when they are unable to work.
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 leave (among other things). The FMLA applies only to employers with at least 50 employees.
Pregnancy is considered a serious health condition under the law. If you qualify, you may use the FMLA to take time off when you are unable to work because of your pregnancy and childbirth. You may also take FMLA leave for prenatal care, including routine check-ups and doctor visits. (Learn more about the FMLA, including eligibility requirements, in our article on FMLA leave for pregnancy and disability.)
West Virginia does not 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, whether biological, adopted, or foster. This is part of the total 12-week leave entitlement that FMLA provides. So, if you use two weeks of FMLA leave during your pregnancy, you will have ten weeks left to use for parenting leave.
If you are married to someone who works for the same company, however, your employer can limit your total amount of FMLA leave for parenting to 12 weeks for both of you. 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.
The FMLA allows employees to take their pregnancy or medical leave intermittently, if it's medically necessary. For example, if you have a prenatal appointment with your OB-GYN, you don't have to take a whole day off; you can use a couple of hours of your FMLA leave, 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.
For parental leave, however, the rules are different. If you want to use your FMLA parenting leave a little at a time—for example, by returning to work part-time for a while, or by taking some of your leave when the baby is born and some at a later point when your partner returns to work—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 the baby being born.
FMLA leave is unpaid, and West Virginia does not have a paid family leave law or paid short-term disability benefits. However, you may ask—or your employer may require you—to use your accrued paid leave (like sick days, vacation, or PTO) to get paid during your time off.
Your employer might offer 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.