San Diego Employment Law Blog

FMLA, Maternity Leave, Pregnancy Disability

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Created on Wednesday, 06 February 2013

Pregnant Employee

FMLA and Maternity Leave

The Family Medical Leave Act (FMLA) turned 20 yesterday.   The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

  • Twelve workweeks of leave in a 12-month period for:
    • the birth of a child and to care for the newborn child within one year of birth;
    • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
    • to care for the employee’s spouse, child, or parent who has a serious health condition;
    • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Q: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

Q: Can the employer count time on maternity leave or pregnancy disability leave as FMLA leave?

Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

In California the Fair Employment and Housing Act (FEHA) contains provisions relating to pregnancy leave. These provisions cover all employers with five or more employ­ees. It is unlawful for an employer to discriminate in terms of compensation, conditions, or privileges of employment because of pregnancy. In addition, there are certain leave and transfer protec­tions and guarantees provided under the FEHA and the California Family Rights Act (CFRA).

California Pregnancy Leave Requirements

  • An employee disabled by pregnancy is entitled to up to four months dis­ability leave. If the employer pro­vides more than four months of leave for other types of temporary disabili­ties, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.
  • Leave can be taken before or after birth during any period of time the woman is physically unable to work because of pregnancy or a preg­nancy-related condition. All leave taken in connection with a specific pregnancy counts toward computing the four-month period.
  • Pregnancy leave is available when a woman is actually disabled. This includes time off needed for prenatal care, severe morning sickness, doc­tor-ordered bed rest, childbirth, re­covery from childbirth, or any related medical condition.
  • If an employee is disabled as the result of a condition related to pregnancy, childbirth, or associated medical conditions and requests reasonable accommodation upon the advice of her health-care provider, an employer must provide reasonable accommodation.
  • As an accommodation, and with the advice of her physician, an employee can request transfer to a less strenuous or hazardous position for the duration of her pregnancy.
  • Employees are entitled to take pregnancy disability leave in addition to any leave entitlement they might have under CFRA. For example, an employee could take four months pregnancy disability leave for her disability, and 12 weeks CFRA leave to bond with the baby; to bond with an adopted child; or to care for a parent, spouse, or child with a seri­ous health condition. CFRA leave may also be taken for the employee’s own serious health condition. For more information, see below.
  • If possible, an employee must provide her employer with at least 30 days advance notice of the date for which the pregnan­cy disability leave is sought or transfer begins and the estimated duration of the leave.
  • If 30 days advance notice is not pos­sible due to a change in circumstances or a medical emergency, notice must be given as soon as practical. The leave may be modified as a woman’s changing medical condition dictates. If a woman desires to return earlier than agreed, an employer must reinstate her within two business days of her notice.

Salary and Benefits During Pregnancy Leave

  • Employers who provide health insurance coverage for employees who take leave for non-pregnancy-related, temporary disabilities must provide coverage for employees who take leave for pregnancy, childbirth or related medical conditions.
  • An employer may require an employee to use her accrued sick leave during any unpaid portion of her pregnancy disability leave. The employee may also use vaca­tion leave credits to receive compensation during an otherwise unpaid portion of her pregnancy disability leave. An employer may not require an employee to use vacation leave or other accrued time off during pregnancy disability leave.

Return Rights after Pregnancy Leave

  • After a pregnancy disability leave or transfer, employees are guaranteed a return to the same position and can request the guarantee in writing.
  • If her same position is no longer avail­able, such as in a layoff due to plant closure, the employer must offer a posi­tion that is comparable in terms of pay, location, job content, and promotional op­portunities, unless the employer can prove that no comparable position exists.

California Family Rights Act (CFRA) Leave Requirements

  • To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have worked at least 1,250 hours for that employer in the 12-month period before the leave begins.
  • An eligible employee may take an unpaid leave to bond with an adopted or foster child or to bond with a newborn.
  • An eligible CFRA employee may take unpaid leave to care for a parent, spouse, or child with a serious health condition. CFRA leave may also be taken for the employee’s own serious health condition.
  • Full-time employees may take leave of up to 12 work weeks in a 12-month period. Part-time employees may take leave on a proportional basis. The leave does not need to be taken in one continuous period of time.
  • An employer may require a 30-day advance notice of the need for a CFRAqualifying leave. When this is not possible due to the unexpected nature of the leave, notice should be given as soon as practicable. Notice can be written or verbal and should include the timing and the anticipated duration of the leave. An employer must respond to a leave request within 10 calendar days.
  • The employer may require written communication from the health-care provider of the child, parent, spouse, or employee with a serious health condition stating the reasons for the leave and the probable duration of the condition.
  • Employees are entitled to take CFRA leave in addition to any leave entitlement they might have under PDL. Leave taken for the birth or adoption of a child must be completed within one year of the event.
  • In addition to the family care and medical leave requirements of the CFRA, employers of five or more persons have additional obligations pertaining to PDL.

Salary and Benefits During CFRA Leave

  • Employers are not required to pay employees during a CFRA leave. An employer may require an employee to use accrued vacation time or other accumulated paid leave other than sick time. If the CFRA leave is for the employee’s own serious health condition, the use of sick time can be required.
  • If the employer provides health benefits under a group plan, the employer must continue to make these benefits available during the leave. The employee is also entitled to accrual of seniority and participation in other benefit plans.

Return Rights After CFRA Leave

  • After CFRA leave, employees are guaranteed a return to the same or comparable position and can request the guarantee in writing.
  • If the same position is no longer available, such as in a layoff or closure, the employer must offer a position that is comparable in terms of pay, location, job content, and promotional opportunities, unless the employer can prove that no comparable position exists. An employee is not entitled to reinstatement if the employee would have been otherwise laid off or terminated.

Family Temporary Disability Insurance (FTDI) or “Paid Family Leave”

Employees on CFRA leave of absence may also be eligible for six weeks of paid leave under FTDI, a program administered by the California Employment Development Department (EDD).

In 2002, historic legislation was enacted to extend disability compensation to cover individuals who take time off of work to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. Senate Bill 1661 established the Paid Family Leave insurance program, also known as Family Temporary Disability Insurance program, to be administered by the State Disability Insurance (SDI) program. An estimated 13 million California workers who are covered by the SDI program have also been covered for Paid Family Leave insurance benefits as of July 1, 2004.

For California workers covered by SDI, Paid Family Leave (PFL) insurance provides up to six weeks of benefits for individuals who must take time off to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child.

Information on Paid Family Leave

To learn more about Paid Family Leave, view the Paid Family Leave Fact Sheet or the State Disability Insurance Frequently Asked Questions.

If you have questions regarding FMLA, CFRA, Maternity Leave, Pregnancy Disability Leave, or if you believe you are a victim of illegal dis­crimination, you should contact a pregnancy discrimination lawyer, such as San Diego employment lawyer, John McCarthy.

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