What types of maternity leave are available in California?
For families expecting a new child, pregnancy leave laws in California are important but complicated. There are three basic types of leave that parents may take: FMLA leave, CFRA leave, and pregnancy disability leave. Many parents qualify for the California Paid Family Leave program as well.
FMLA Leave
Parents, including fathers, may take leave under the federal Family and Medical Leave Act (FMLA) for the birth of a child and to care for a newborn child.[note] 29 USC § 2601(b)(1), (2); see Ragsdale v. Wolverine World Wide, Inc. (2002) 535 US 81, 86.[/note] Women who suffer from a serious pregnancy-related medical condition may take FMLA leave as well.
- How much FMLA leave can be taken for the birth of a child?
Under FMLA leave, a parent can take up to 12 weeks of leave, depending on whether they have already used FMLA leave time for other reasons. It must be taken within one year after the child’s birth. If you adopt a child or begin fostering a child, you are eligible for FMLA leave within one year of the adoption date or start of foster care.[note] 29 U.S.C.A. § 2612; 29 C.F.R. § 825.701; Cal. Gov’t Code § 12945.2(p), (s).[/note] FMLA leave must be taken all at once, not in short blocks of time, unless your employer approves intermittent leave or you or your child has a serious health condition related to pregnancy.[note] 29 U.S.C.A. § 2612(b); 29 C.F.R. § 825.202(c).[/note]
- How do I know if I qualify for FMLA leave?
Only parents who have worked for their employers for (1) more than one year, (2) who have worked for 1,250 hours or more for that employer in that year, and (3) who work for employers with 50 or more employees within a 75-mile radius may take FMLA leave.[note] 29 U.S.C.A. § 2611(2); 29 C.F.R. § 825.110.[/note] FMLA leave is unpaid unless you use accrued paid leave from your employer, have available disability or worker’s compensation benefits, or qualify for California Paid Family Leave.[note] 29 C.F.R. § 825.207. [/note]Your employer may require that you use vacation time or paid time off (PTO) for part of your FMLA leave. [note] Id. [/note]
At the end of your FMLA leave, generally you must be reinstated to the same or a comparable job position as the one you held before you began leave.[note] 29 U.S.C.A. § 2614(a); 29 C.F.R. §§ 825.214, 825.216.[/note]
Bonding Leave under the California Family Rights Act (“CFRA”)
The California Family Rights Act (CFRA) permits parents to take time off work for the birth of a child, bonding with their children, or placement of a child for adoption or foster care. Usually, both parents can take CFRA leave. However, if the parents work for the same employer, then the employer may decide that both parents can only take 12 weeks total.[note] Cal. Code Regs. tit. 2, § 11087.[/note]
Parents may take CFRA leave for up to 12 weeks within a year of the child’s birth, adoption, or starting foster care.[note] Cal. Code Regs. tit. 2, § 11087(h); Cal. Gov’t Code § 12945.2(p) & (s).[/note] Importantly, CFRA leave time runs concurrently with FMLA leave, meaning you will exhaust the 12 weeks available to you under both laws at the same time.[note] 2 Cal.C.Regs. § 11090(b).[/note]
Like FMLA leave, only parents who have worked for their employers for more than one year, who have worked for 1,250 hours or more for that employer in that year, and who work for employers with 50 or more employees within a 75-mile radius may take CFRA leave.[note] Cal. Code Regs. tit. 2, § 11087(e).[/note] Also like for FMLA leave, you will not be paid for CFRA leave unless you use paid leave or other benefits, and when you return from leave you must be reinstated to the same or a comparable position.[note] Cal. Code Regs. tit. 2, §§ 11092(b), 11089.[/note]
Parents with disabilities due to pregnancy, childbirth, or related medical conditions do not have a “serious health condition” permitting CFRA leave.[note] Gov.C. § 12945.2(c)(3)(C); 2 Cal.C.Regs. § 11087(q).[/note] Instead, California allows for pregnancy disability leave.
Pregnancy Disability Leave
In addition to CFRA leave, California law permits employees who have “pregnancy disabilities” to take up to four (4) months of leave.[note] Cal. Code Regs. tit. 2, §§ 11035(h), 11037.[/note] Depending on your hours worked per week, you may be eligible for fewer days of leave. Pregnancy disability leave may be taken all at once or intermittently, although you should give your employer as much notice as possible.[note] Cal. Code Regs. tit. 2, § 11050(a)-(b). [/note] Unlike for CFRA and FMLA leave, your employer only needs to have five (5) employees or more for you to qualify. There are no minimum hours or years worked requirements.
Only employees with pregnancy disabilities may take this special kind of leave. Under the law, a pregnancy disability is a “physical or mental condition intrinsic to pregnancy or childbirth” resulting in an employee being unable to “perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons.”[note] Cal. Gov’t Code § 12945; Cal. Code Regs. tit. 2, § 11035(d), (f).[/note] Your doctor should determine whether you have a pregnancy disability.
- What is considered a “disability” for purposes of pregnancy disability leave in California?
Examples of common pregnancy disabilities are severe morning sickness, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, need for bedrest, need for pre- or post-natal care, loss or end of pregnancy, or recovery from childbirth, loss or end of pregnancy.[note] Cal. Code Regs. tit. 2, § 11035(f).[/note] Employees who have pregnancy disabilities but are not on leave may be entitled to accommodations at work that allow them to perform their duties, such as longer breaks or temporary transfers.[note] Cal. Code Regs. tit. 2, §§ 11035(s), 11040, 11041, 11042.[/note]
Like for CFRA and FMLA leave, you must be reinstated to your same or a comparable position when you return from pregnancy disability leave.[note] Cal. Gov’t Code § 12945; Cal. Code Regs. tit. 2, § 11043.[/note] You will not be paid for this leave unless you use vacation or PTO, your employer pays employees who are on temporary disability, or if you pay into state disability insurance (SDI).[note] Cal. Code Regs. tit. 2, § 11044(a).[/note]
Pregnancy disability leave time runs at the same time as FMLA leave time, but not at the same time as CFRA leave time. In other words, you will probably use up your FMLA leave if you take 4 months of PDL, but once your 4 months of PDL elapses you still have 12 weeks of CFRA leave available, minus any CFRA leave time taken for non-pregnancy disability reasons in the preceding 12 months.[note] Cal. Code Regs. tit. 2, §§ 11045(a), 11046(a), 11093(a), (c), (d).[/note] If you take the maximum amount of leave because you qualify for PDL, CFRA, and FMLA and have not previously used any leave, you can take up to 4 months of leave, plus 12 weeks under FMLA (approximately 7 months total).[note] Cal. Code Regs. tit. 2, §§ 11046(d), 11093(d).[/note]
California Paid Family Leave
Some employees may receive payment from the state for bonding time or caring for ill relatives. The payments come from the State Disability Fund and are called Paid Family Leave. Those eligible for Paid Family Leave include employees who take time off work to care for a seriously ill child, spouse, parent, sibling, domestic partner, grandparent, or grandchild, or those who take time off to bond with a child within one year of the birth or placement of the child for foster care or adoption.[note] Cal. Code Regs. tit. 22, § 3303-1; Unemp. Ins. Code §§ 3301(a), 3302.[/note]
Paid Family Leave can last up to six weeks. Most employees receive 55% of weekly wages up to a maximum amount from the state.[note] Unemp. Ins. Code §§ 3301(a)(1), (b), 2655; www.edd.ca.gov/pdf_pub_ctr/de2588.pdf.[/note] Employees who qualify for FMLA or CFRA must take Paid Family Leave at the same time as FMLA/CFRA. Even employees who do not qualify for FMLA or CFRA may receive Paid Family Leave if they meet the requirements.[note] Unemp. Ins. Code §§ 3300(b), 3303.1(b); Cal. Code Regs. tit. 22, § 3301(a)-1.[/note]
Are you facing problems at work taking pregnancy leave? Petronelli Law Group’s experienced attorneys provide personalized, thorough legal representation to California employees. To find out more, call us at (888) 855-3670 today.
