California employers administering a leave of absence – be it for PDL, FMLA, or CFRA leave – have to be sure they understand which laws apply in any given circimstance. For example, which of the laws cover baby bonding time? Can that time be taken intermittently? What happens when an employee out on PDL has the baby but hasn’t been released from PDL yet—which leave is in effect at that point?
In a recent CER webinar, Allen Kato answered all these questions and more. Here’s a sample of the questions and answers that hit squarely at the intersection of PDL, FMLA and CFRA leave administration.
Q. Under FMLA, can employees take baby bonding time intermittently?
A. Under FMLA, yes. There is a right to have baby bonding time off and in theory that could be intermittent. However, in California, that FMLA time will probably be running at the same time as PDL and/or CFRA. After FMLA is exhausted, most employees are going to have CFRA time off left—and they’ll have a fresh 12 weeks in many of these cases. At that point, CFRA would state that they could have 2 occasions of intermittent leave and otherwise it needs to be in longer increments.
Q. Can CFRA start if the baby has been delivered but the doctor has not released the employee from PDL?
A. At the point that the baby is born, that’s when the CFRA starts. At that point, if the PDL has not been exhausted and the employee is still disabled, then there may be a gap where some of the time is covered by both PDL and CFRA (in which case they could run concurrently).
Q. Is it a good practice to start the CFRA leave paperwork early, if, after 88 days of Pregnancy Disability Leave (PDL), an employee is still not released to work by the healthcare provider?
A. If I’ve understood correctly, the individual has gone through the PDL, but the baby is not yet delivered—and the question is whether or not to start the CFRA. My answer would be no. CFRA does not cover pregnancy disability. It does cover care for the newborn. To cover that gap (the time between when the PDL runs out and when CFRA would kick in), the employer should consider the need for additional disability leave under the Fair Employment and Housing Act (FEHA). That’s how to proceed.
If it is still considered to be a reasonable accommodation to afford that employee an additional leave time for the disability, then that’s the way to go—provide that leave as long as it’s not an undue hardship to the company. At the point that the baby is delivered, now the employee is eligible for CFRA.
Q. Do employees using PDL leave have to provide documentation from a doctor stating that they need to be out? Or does the employee set the amount of time that they stay out with a new infant?
A. For the PDL, that portion must be supported by a doctor’s certification—the same way FMLA certification would be required.
Q. Does CFRA leave to care for a child apply to fathers as well as mothers?
A. It applies to the father as well. The one exception is if the parents both work at the same company—in that case, the total time off can be restricted to 12 weeks in total, not 24.
The above information is excerpted from the webinar “FMLA/CFRA Certifications: How to Properly Designate Absences and Stop Leave Abuse.” To register for a future webinar, visit CER webinars.
Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.
Interesting that some of these answers are incorrect!
CFRA regulations specifically stated that it cannot run concurrently to PDL leave; they are separate and distinct entitlements for a pregnant woman within California. Except in cases where PDL has been exhausted, but disability continues. In that case, CFRA time can begin to ensure job protection.
Time for an update!