Cristy from Albany writes, “Chris, my wife and I are excited to have our first child in the Spring. The pregnancy has been challenging, however. I may need extended time off from work both before and after my baby is born. I am confused as to the amount of leave I am entitled to. Could you please clarify the law for me?
Thank you for your message Cristy and congratulations to you and your wife on your great news.
I can appreciate why you might find California law regarding pregnancy confusing. Three different statutes determine the amount of time an employee can take off work due to pregnancy and child birth: the Family Medical Leave Act (FMLA), California Family Rights Act (CFRA), and the Pregnancy Disability Leave (PDL) law.
The FMLA is a federal law that provides pregnancy leave. In California, pregnancy leave is also covered under CFRA and the PDL, two state laws. Combined, the three leave laws can – under certain circumstances – provide up to seven months of unpaid leave, but each case needs to be analyzed individually.
Under the FMLA and CFRA, you may take a leave of up to 12 weeks in a 12-month period for the birth of your child.
You are eligible for leave under the federal FMLA and the state CFRA if the following criteria are met:
- you have worked for your employer for at least 12 months (even if temporary or part-time);
- you have worked at least 1,250 hours (an average of 25 hours per week) during the 12 months before the leave; and
- your employer employs at least 50 people within a 75-mile radius of your worksite.
Even if you are not eligible for FMLA and CFRA leave, you still are entitled to take up to 4 months of unpaid PDL if you are disabled due to pregnancy, childbirth or related medical conditions, and your employer employs at least five employees.
Generally, health care providers will certify a pregnancy disability leave from 4 weeks before childbirth and 6 weeks after a vaginal delivery or 8 weeks after delivery by cesarean section. Nevertheless, you may take up to 4 months of PDL for complications, severe morning sickness, or other disabilities related to pregnancy, childbirth, or a related medical condition. The specific duration of disability within that 4 month window must be determined by your health care provider.
The PDL and FMLA leave run concurrently (they overlap). You cannot add the 12 weeks of the FMLA to the 4 months of the PDL. Under the CFRA, however, you are entitled to 12 weeks of baby-bonding time after your baby is born. This leave can be added to leave taken under the FMLA and/or PDL.
Therefore, pregnant employees who are eligible for FMLA/CFRA leave may take both a PDL leave for the time they are disabled and a 12-week CFRA leave to care for and bond with their child.
Cristy, I hope your employer, without any objection or hassle, provides you the full amount of leave you are entitled to under the facts of your situation. Keep in mind, it is unlawful for an employer to interfere with an employee exercising their leave rights, including discouraging the leave, threatening retaliation or requiring the employee to work in some capacity during the leave. In most cases, you are entitled to return to the same or similar position at rates of equal pay and benefits. Refusal to reinstate is a form of discrimination and any retaliation is forbidden.
One of the supreme joys of my life has been being a parent to my daughter Audrey and son Jack. I wish you and your wife a healthy baby, safe child birth, and strong and complete recovery for you. Happy New Year!