Pregnancy Leave

There are three statutes which give women in California the right to a certain amount of pregnancy leave. These three bodies of law are the federal Family Medical Leave Act of 1993 (FMLA), California Pregnancy Disability Leave (PDL), and the California Family Rights Act (CFRA). The size of your place of employment (i.e., number of employees) affects which laws apply to your employment.

California also offers Paid Family Leave insurance, which is unemployment compensation disability insurance provided by California’s State Disability Insurance (SDI) program and funded by employee payroll deductions. Paid Family Leave benefits are available to workers who suffer a wage loss due to time taken off work to provide care for a seriously ill family member or to bond with a new child.
California workers may receive up to six weeks of partial pay Paid Family Leave benefits each year. Employees who pay into California’s SDI program are eligible for Paid Family Leave benefits regardless of the size of their employer.

A. Family Medical Leave Act of 1993:

The Family Medical Leave Act (FMLA) allows for up to four months of leave from work, and it applies equally to men and women. There are four reasons that you may qualify for leave under the FMLA:
(1) To care for a child born within the last year;
(2) To care for a child that has been adopted or placed in foster care with you during the past year;
(3) To care for a child, spouse, or parent with a serious health condition; or
(4) For a serious health condition that makes you unable to perform the functions of your position.

1. Eligibility

According to the FMLA, Title 1, Section 101, in order to be an eligible employee, the employee must have been employed for at least 12 months by the employer, and must have worked at least 1,250 hours of service during the 12-month period. Also in order for the employee to be eligible for FMLA leave, the employer must have at least 50 employees within a 75-mile radius of the worksite of the employee requesting the leave.

2. Restoration of Position

The FMLA states that, in general, any eligible employee who takes FMLA leave, on return from such leave shall be entitled to
be restored by the employer to the position of employment held by the employee when the leave commenced; or… to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment…[and the taking of FMLA leave] shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.
However, there is an exemption concerning certain highly compensated employees. An employer may deny restoration if “such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; … the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and … in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.”
This exemption affects salaried eligible employees who are “among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.”
B. California Pregnancy Disability Leave:

Women in California who are disabled by their pregnancy are entitled to up to four months of protected leave under California Pregnancy Disability Leave (PDL). This leave runs concurrently with FMLA. California Code of Regulations, Section 7291.7 states:

All employers must provide a leave of up to four months, as needed, for the period(s) of time a woman is actually disabled by pregnancy even if an employer has a policy or practice which provides less than four months of leave for other similarly situated temporarily disabled employees….

If an employer has a more generous leave policy for other temporary disabilities than is required under Section 7291.7… the employer must provide such leave to employees temporarily disabled by pregnancy.

1. Eligibility

If your employer has a minimum of five employees, you are eligible for up to four months of job-protected leave for pregnancy-related disability. A “four month leave” means the number of days the employee would normally work within four months. There is no length of service requirement before an employee disabled by pregnancy is entitled to a pregnancy disability leave.

2. Disability Requirement

PDL is available only when a woman is actually disabled. This includes leave needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or any related medical condition. According to California Code of Regulations, Section 7291.2, a woman is “disabled by pregnancy” if:
in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons…. A woman is also considered to be “disabled by pregnancy” if she is suffering from severe “morning sickness” or needs to take time off for prenatal care.

The employer is entitled to request medical certification from the employee requesting leave if the employer requires certification of other similarly suited employees. According to California Code of Regulations, Section 7291.2 “certification” means:
a written communication from the health care provider of the employee that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or to less strenuous or hazardous duties.

3. Job Transfer

Under PDL, and according to California Code of Regulations, Section 7291.6, it is unlawful for an employer to deny the request of an employee affected by pregnancy to transfer provided that:

(1) The employee’s request is based on the certification of her health care provider that a transfer is medically advisable; and

(2) Such transfer can be reasonably accommodated by the employer. No employer is required to create additional employment that the employer would not otherwise have created, discharge another employee, violate the terms of a collective bargaining agreement, transfer another employee with more seniority, or promote or transfer any employee who is not qualified to perform a new job.

The burden is on the employer to prove by a preponderance of the evidence that such a transfer cannot be reasonably accommodated.

Under PDL, if it is medically advisable for an employee to take intermittent leave or leave on a reduced work schedule, the employer may require the employee to transfer temporarily to an available alternate position. However, this alternate position must have the same pay and benefits, the employee must be qualified for the alternate position, and it must better accommodate recurring periods of leave than the employee’s regular position.

4. Reinstatement

When the employee’s health care provider certifies that the transfer or leave is no longer needed, the employer must reinstate the employee to her same or comparable position.

5. Denial of Leave

It is an unlawful employment practice for an employer to refuse to grant a pregnancy disability leave to an eligible employee. In order to prove that an employer unlawfully denied this leave, California Code of Regulations, Section 7291.8 states the burden of proof as follows:

Denial of a request for pregnancy disability leave is established if the Department or the employee proves, by a preponderance of the evidence, the following elements.
(1) The employer was an employer under the FEHA with five or more employees.
(2) The employee was disabled by pregnancy.
(3) The request was reasonable.
(4) The employer denied the request for pregnancy disability leave….

A request to take a pregnancy disability leave is “reasonable” if it complies with any applicable notice requirements, and if it is accompanied, where required, by a certification.

C. California Family Rights Act:

The California Family Rights Act (CFRA) offers protected leave to care for a newly born or adopted child.

1. Eligibility

The California Supreme Court in Loniki v. Sutter Health Central, summarized the CFRA as follows:
The CFRA applies to companies with 50 or more employees; it allows an employee up to 12 weeks of unpaid “family care and medical leave” if the employee has worked for the company for more than a year, and has at least 1,250 hours of service during the previous year. Grounds for the leave are family needs such as birth or adoption of a child, serious illness of a family member, or…when “an employee’s own serious health condition… makes the employee unable to perform functions of the position of that employee.”

2. Relationship Between CFRA and PDL

The right to take pregnancy leave under California Pregnancy Leave, discussed above, is “separate and distinct from the right to take a CFRA leave.” CFRA leave begins after California Pregnancy Disability Leave ends. According to California Code of Regulations, Section 7291.13:

At the end of the employee’s period(s) of pregnancy disability, or at the end of four months pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by her pregnancy before taking CFRA leave for reason of the birth of her child.

Therefore, the maximum possible combined statutory leave entitlement under all three applicable bodies of law is four months plus 12 workweeks. In order to reach this maximum entitlement, the employee must be disabled by pregnancy for four months and then request and be eligible for a 12 week CFRA leave for reason of the birth of the child.