Pregnancy sick leave in the US: FMLA, the PWFA and what is unpaid

The uncomfortable starting point

The United States has no federal paid sick leave. There is no national statutory sick pay, no federal wage replacement for pregnancy-related illness, and no federal entitlement to paid time off for antenatal appointments. What federal law provides is job protection and accommodation, which are valuable but are not money.

Everything that pays is either your employer's own policy or a state programme, and both vary enormously. Knowing which of the three layers you are relying on is the first step.

FMLA: 12 unpaid workweeks, if you qualify

Federal regulation sets the entitlement precisely. An eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period, and the qualifying reasons include the birth of the employee's son or daughter and caring for the newborn, and a serious health condition that makes the employee unable to perform one or more essential functions of the job.

Pregnancy-related illness and antenatal care can fall under the serious health condition limb, which is why prenatal complications, severe morning sickness or bed rest are often FMLA absences rather than merely sick days. FMLA leave is unpaid, though employers may require or you may elect to substitute accrued paid leave.

The three eligibility tests

This is where most people who assume they are covered discover they are not. To be an eligible employee you must meet all three of the following, measured as of the date the leave is to start:

Employed by the employer for at least 12 months. The months need not be consecutive, though employment before a break in service of seven years or more generally need not be counted.

Employed for at least 1,250 hours of service during the 12-month period immediately preceding the leave. That is roughly 24 hours a week for a year, which excludes a lot of part-time work.

Employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. Whether the 50-employee test is met is determined when you give notice of the need for leave, and an employer may not end leave that has already started because headcount later dropped below 50.

How the 12-month period is measured

Employers pick one of four methods: the calendar year, a fixed 12-month leave year, a 12-month period measured forward from the date leave begins, or a rolling 12-month period measured backward. The rolling method is the strictest, and under it your remaining entitlement is whatever part of the 12 weeks you have not used in the immediately preceding 12 months.

One protection worth knowing: if an employer fails to select a method, the option that provides the most beneficial outcome for the employee will be used. Ask your HR department in writing which method they use.

The Pregnant Workers Fairness Act

The PWFA requires a covered employer to provide a reasonable accommodation to a qualified employee's or applicant's known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer an undue hardship. It applies to most employers with 15 or more employees.

The law took effect on 27 June 2023, and the EEOC's final regulation implementing it took effect on 18 June 2024. The EEOC began accepting charges alleging PWFA violations on 27 June 2023.

The provision that keeps you at work

This is the part that changes outcomes. The PWFA prohibits an employer from requiring a worker to take leave if there is another accommodation that does not cause an undue hardship and that will allow the worker to stay on the job. It also prohibits an employer from forcing an accommodation on a worker without following certain steps.

Being sent home unpaid used to be a common employer response to a pregnancy restriction. Under the PWFA, if a chair, extra breaks, a shift change or a temporary transfer would work, leave is not the employer's first resort. Common accommodations the EEOC lists include keeping water nearby and drinking as needed, additional restroom breaks, sitting if the job requires standing or standing if it requires sitting, and breaks to eat and drink.

What varies by state, and we will not average it

Paid sick leave laws, paid family and medical leave insurance programmes, temporary disability insurance and state pregnancy accommodation statutes are all set state by state, and several states and cities provide far more than federal law. There is no single national answer, and generalising from one state would mislead most readers.

Your state labor department is the authority for paid leave and paid sick time. The EEOC is the authority for the PWFA and for pregnancy discrimination. Your employer's HR department is the authority for company policy, and that is the one worth asking about in writing.

What to do, in order

Check the three FMLA tests before you need the leave. Ask which 12-month method your employer uses. If you have a pregnancy-related limitation, ask for a specific accommodation rather than time off, and put it in writing. And check your state's paid leave programme, because in some states it is the only thing that will actually pay you.

What FMLA does not do

It is worth being precise about the limits, because FMLA is often described as maternity leave and it is not. It provides unpaid, job-protected leave. It does not pay you, it does not extend beyond 12 workweeks in the 12-month period for the ordinary qualifying reasons, and it does not apply at all if you fail any of the three eligibility tests.

Holidays inside a full FMLA week do not reduce your entitlement. If you take FMLA in increments of less than a week, a holiday does not count against your entitlement unless you were scheduled and expected to work it. And if your employer's business temporarily ceases for a week or more, those days do not count against your leave.

Where the paid layer actually comes from

Anything that replaces income comes from your employer's own policy, a state paid family and medical leave programme, a state temporary disability insurance scheme, or a private disability policy. Find out which of those you have before you need it, and ask HR to confirm in writing how they interact with FMLA, because employers commonly run paid and unpaid leave concurrently rather than consecutively.