We have been a little inconsistent in administering pregnancy leaves. We now have several employees who are in the early stages of pregnancy or who have casually mentioned that they are ready to start their families. I’d like to get my policies clearly laid out before these employees start requesting leave. Under federal and California law, what leave are employees entitled to when they are pregnant and after the birth, and when is it a paid leave?— Sarah, HR Manager in San Francisco
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
To get a handle on this policy issue that challenges virtually every employer, we talked to Mary Topliff.
For most organizations, pregnancy leaves of absence are the most frequently used type of leave. Unlike many other kinds of employee medical leaves, employers have plenty of advance notice with pregnancy leaves. This gives employers and their human resource personnel the time to fully explain to the employee how many days she may take off, how she will be paid, and the impact on her group medical benefits.
Pregnancy Disability Leave
For employers with five or more employees in California, the state Pregnancy Disability Act (PDA), which is found in Government Code Section 12945, applies. It provides an employee disabled by her pregnancy or a related medical condition with up to four months of job-protected time off. This leave applies at any time during the employee’s pregnancy and through the period of recovery following the child’s birth. Keep in mind that an employee with severe morning sickness early on in her pregnancy may need to take time off, which would be protected by this law and counted toward the maximum four-month job protection period.
The federal Family and Medical Leave Act (FMLA) may also apply to a pregnant employee. FMLA provides up to 12 workweeks of job-protected time off for an employee’s “serious health condition,” including an inability to perform the essential job functions due to pregnancy. FMLA applies to employers with 50 or more employees. To be eligible, an employee must have worked for the employer for at least 12 months and, in the year preceding the leave, have worked at least 1,250 hours. The employee must also work in an office location that has 50 or more employees or within a 75-mile radius that encompasses 50 or more employees.
If an employee is covered by both the PDA and the federal FMLA, there are two job protection periods. However, it is acceptable for an employer to apply both laws at the same time because they cover the same reason for the leave. Thus, the 12-week job protection under FMLA runs concurrently with the 4-month job protection time under the PDA.
Another consideration is the employer’s policies. Determine whether you allow a longer leave of absence for other types of employee medical issues (other than for workers’ compensation disability leaves). For example, some employers allow employees to extend medical leaves for up to 6 months, one year, or even longer. If an employer has such a policy, and if a pregnant employee needs to take more than the maximum 4 months provided by California law, the employer would have to follow the policy it applies to other medical leaves when responding to the pregnant employee’s leave request.
The actual amount of leave time needed will depend on certification by the employee’s medical provider.
New Child Bonding Leave
Leave to care for a newborn (referred to here as “new child bonding leave”) may be taken under the federal FMLA or under the California Family Rights Act (CFRA). CFRA generally mirrors FMLA regarding eligibility factors and the job reinstatement period, but it does not include pregnancy as a “serious health condition.” Therefore, a maximum of 12 workweeks may be taken for new child bonding leave at the conclusion of a pregnancy leave. This assumes that the employee has not previously used leave time covered by CFRA.
The application of these two laws may provide the unique scenario in which an employee may “stack” two different types of leave: 1) the pregnancy disability leave of up to 4 months of job protected time; and 2) new child bonding leave of up to 12 workweeks of job-protected time.
How Employees Are Paid
The California and federal leave laws described in this article do not require that the employee be paid during the time off, although an employer may choose to do so. Many employers prefer to have employees use their sick, vacation, and/or paid time off credits during the leave(s).
For pregnancy disability leaves, employers may require that employees use their accrued sick leave credits. Employers must allow these employees to use their accrued vacation leave credits.
For new child bonding leaves, employers may require that employees use accrued sick and vacation leave credits.
Employees are generally eligible to receive State Disability Income (SDI) benefits during the pregnancy disability portion of the leave and Paid Family Leave (PFL) benefits from the state during six weeks of the new child bonding leave.
Continuation of Group Benefits Participation
For leaves covered by FMLA/CFRA, the employee continues to participate in any group health plan as though she were actively employed. Therefore, if an employee pays a portion of the premiums, the employee must continue to do so during the leave. Various provisions apply regarding COBRA continuation notices and the like.
The employer’s obligation in this regard is met by continuing the benefits for up to 12 weeks during the FMLA portion of the leave, even though the employee may be able to take a CFRA leave later for new child bonding. If the employee qualifies only for pregnancy leave, there is no requirement that the employer continue the benefit coverage. This requirement is found only in FMLA/CFRA. Of course, employers may choose to continue benefits when not required by statute or for longer periods than the law requires.
Practical Tips
- Have a comprehensive leave of absence policy or guidelines that address all facets of leaves.
- Disseminate the policy or guidelines to all employees.
- Have employees complete request for leave forms so you have a written record of what they requested and when.
- Confirm in writing with the requesting employee the amount of job-protected leave time, compensation, benefits, and any expectations for the employee during the leave (for example, advance notice and medical certification requirements before returning to work).
- Maintain all leave of absence documentation in a confidential file, separate from the employee’s personnel file.
Mary L. Topliff is principal of the Law Offices of Mary L. Topliff in San Francisco.