Pregnant employees in California are in an advantageous position in comparison with pregnant employees in most other states.  California employees may not only be entitled to the time off under the Family Medical Leave Act (“FMLA”), they may also have leave rights under the California Pregnancy Disability Leave Act (“PDL”) and California Family Rights Act (“CFRA”).  Unfortunately, the technical aspects of these laws can be complicated, and employees can easily misunderstand how each leave entitlement works and how they interplay with one another.

Pregnancy Disability Leave Act

The first law which often comes into play involving pregnancy is the PDL.  Under the PDL, a pregnant employee who works for an employer with five (5) or more employees is afforded up to four (4) months of leave, as needed, for the periods when the employee is actually disabled because of pregnancy.  This leave can be taken intermittently and need not be taken consecutively.  It can also be taken in the form of a reduced work schedule.  The four-month calculation also takes into account whether the employee works full-time or part-time.

Leave under the PDL is generally taken when an employee is “affected by pregnancy.”  This includes during pregnancy, during childbirth, and following childbirth for any related medical condition.  The key point to remember is that PDL only applies when an employee is considered disabled by pregnancy because she is unable to perform any one or more of the essential functions of her job or to perform any of those functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons.  An employee can also be considered disabled by pregnancy when suffering from severe morning sickness or in need of time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, or the loss or end of a pregnancy.

Most employees will take a portion of their PDL leave during pregnancy and reserve the remaining bulk to use during childbirth and after delivery.  One of the most common misunderstandings with respect to PDL leave is that an employee automatically gets four (4) months off under the PDL.  That is not the case.  That is the amount of leave available, but not everyone will receive a full four months off under the PDL.  The reason being, PDL leave only applies when a pregnant employee is “disabled” due to pregnancy, childbirth or a related medical condition.  Once an employee is released by their health care provider to return to work, they are generally no longer considered “disabled” due to pregnancy, childbirth or related medical condition and, thus, are no longer eligible for PDL leave, even if they have not taken four (4) months of leave.

Family Medical Leave Act

In conjunction with PDL leave, some employees are also eligible for FMLA leave during their pregnancy if they work for an employer more than one (1) year and that employer employs 50 or more employees within a 75-mile radius and the employee has worked more than 1,250 hours in the past year.  To be eligible for FMLA leave due to pregnancy, an employee has to be suffering from a serious pregnancy-related health condition or be bonding with a new child following childbirth, as the result of adopting a new child or taking in a foster child.  The FMLA provides up to 12 weeks off to eligible employees within one year of the child’s birth, adoption, or start of foster care, or due to a serious pregnancy-related health condition.  Often times PDL and FMLA leave will run concurrently while an employee is disabled due to pregnancy, childbirth or related medical condition.

California Family Rights Act

Finally, pregnant employees may also be eligible for CFRA leave. To be eligible for CFRA leave, similar to FMLA, the employee must have worked for an employer for one year and have worked more than 1,250 hours in the past year and work for an employer with five (5) or more employees.  Unlike PDL and FMLA, there is no requirement that the employee suffer from any medical condition to take CFRA leave.  CFRA leave as it relates to pregnancy is often referred to as “bonding leave.”  CFRA leave does not run concurrently with PDL, when an employee is disabled due to her pregnancy or related medical condition.  Instead, CFRA leave commences after the child is born, the employee is no longer disabled due to pregnancy, childbirth or related medical condition and is now bonding with their new baby (be it through birth, adoption or foster placement).  CFRA leave does not run concurrently with PDL but can run concurrently with any remaining FMLA leave while an employee is bonding with a child.

If your head is spinning by now, you’re not alone.  Even the most seasoned HR professional can get confused by these various leave laws.  In most instances, assuming a normal pregnancy with no complications and that the full-time, pregnant employee is eligible for PDL, FMLA and CFRA leave, the employees time off will run similar to the following:

  • Intermittent time off as needed during pregnancy for morning sickness and doctor’s appointments under PDL and FMLA;
  • Up to four (4) weeks off before the expected due date under PDL and FMLA;
  • Six (6) weeks off following childbirth by vaginal delivery and eight (8) weeks off following a cesarean section under PDL and FMLA; and
  • Twelve (12) weeks off to bond with a new baby under CFRA and remaining FMLA.

If a pregnant employee has a complicated pregnancy or childbirth or suffers from post-partum depression, that can extend the period of PDL leave for the entire four (4) month eligibility time.

Additional Rights and Disability

Keep in mind, along with these leave rights, pregnant employees are also entitled to protections from discrimination, harassment and retaliation and have certain reinstatement rights following a protected pregnancy leave.  Additionally, pregnant employees may be eligible for state disability wage replacement benefits for the period of time they are disabled due to pregnancy, childbirth or related medical condition and for wage replacement benefits under California’s Paid Family Leave Program during the time period when they are caring for or bonding with their child.

Pregnant employees should always keep their employers informed of their pregnancy and need for time off.  Certain medical certifications and documentation may be required to properly classify leave and pregnant employees should work with their employer’s human resources department to ensure all of their documentation is submitted in a timely fashion.

Not all employers are well versed in California’s pregnancy leave laws.  If you believe your rights to pregnancy leave have been violated, or you have been terminated as a result of your pregnancy or for requesting or taking protected leave, you should speak with an experienced California employment attorney.  The attorneys at Ares Law Group are well versed in California’s pregnancy leave laws and have regularly represented pregnant employees throughout California to protect their rights.

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