In addition to the federal Family Medical Leave Act (FMLA), West Virginians that work for state and county governments may additionally take advantage of the West Virginia’s Parental Leave Act (the “Act”), which provides that all state and county employees may take up to 12 weeks of unpaid leave during any 12-month period. Because this
unpaid leave is provided after the exhaustion of the employee’s entire annual and personal leave, public employees may extend their paid time off under the FMLA with the 12 weeks of unpaid leave granted by the Act.
When family leave is foreseeable, employees must provide employers with at least two weeks written notice of an expected birth, adoption, or planned medical treatment. The unpaid leave may be used by the employee for the birth of a child, the placement of a child with the employee for adoption, or for care for the employee’s child, spouse, parent, or other dependent with a serious health or medical condition. A serious health condition is defined as a physical or mental illness, injury, or impairment; which requires inpatient or continuing care under the supervision of a health care provider. An employer may use the leave intermittently depending upon the medical condition. Part-time leave is also permitted as long as it does not in total exceed 12 weeks, and does not hinder or interrupt the business operations of the employer.
The Act only applies to permanent employees. An “employee” under the Act means any individual hired for permanent employment who has worked for at least 12 consecutive weeks for an employer. A dependent is defined as anyone living with the employee or dependent upon the employee’s income, and may be unrelated as well as related by blood or marriage. A son or daughter is defined as a biological, adopted, foster child, stepchild, or legal ward. An employee’s son or daughter as defined must either be a minor under 18 years or age or be mentally or physically disabled, and therefore incapable of self-care.
Unfortunately, as mentioned earlier, the West Virginia Parental Leave Act does not apply to private sector employees, but to only those workers who perform services within the state for a department, division, board, bureau, agency, commission, or other unit of the state government or any county board of education in the state. Private sector employees that work for employers that employ fifty or more employees may only utilize the federal FMLA for medical leave until any change in West Virginia law takes place.
An experienced employment lawyer can analyze the circumstances of your situation to determine whether any treatment by your employer violates federal or state law. If you live in and around Huntington, or anywhere in West Virginia, call Amy Crossan, an expert in employment law, for a consultation at 304.523.8451.