Which Individuals Are Covered By The PWFA?

The PWFA protects current employees, former employees, and job applicants in every state, the District of Columbia, and the United States territories regardless of citizenship or immigration status. Transmen, genderqueer, and non-binary persons may become pregnant and experience the other medical conditions covered by PWFA. PWFA's language is gender neutral, and thus covers any person with a relevant health condition. Current - and former - employees include full-time, part-time, seasonal, and temporary workers and participants in a training or apprenticeship program, as well as employees who are on leave or suspension. Unlike the FMLA, there is no minimum period of employment. The PWFA and other federal anti-discrimination laws generally do not apply to workers who are not employees, such as partners, shareholders, members of the board of directors, corporate officers, volunteers, and independent contractors. The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. For an HR Generalist, this determination is a critical part of human resources compliance. This determination requires consideration of all aspects of the worker's relationship with the employer, including whether:

• The employer has the right to control when, where, and how the worker performs the job
• The employer furnishes the tools, materials, and equipment
• The work is performed on the employer's premises in accordance with labor law.
• The worker is paid by the hour, week, or month, adhering to FLSA wage standards.
• The worker is not engaged in his/her own distinct occupation or business

The PWFA also covers U.S. citizens abroad who are working for an American employer or for a foreign corporation controlled by an American employer. Factors to be considered in determining whether an American employer controls a foreign corporation are the interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control of the two entities. All medical and sensitive personnel data related to these claims must be handled per HIPAA privacy standards. However, an overseas employer has a defense against PWFA violations if compliance with the law would cause the employer to violate the law of the foreign country in which the workplace is located.