Entitlement To Unpaid Leaves Of Absence From Work For Up To Four Months For Pregnancy, Childbirth, and Related Medical Conditions
Under the California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, which is enforced by the California Department of Fair Employment and Housing, if an employee is "disabled by pregnancy, childbirth, or related medical condition," the employee is entitled "to take a leave for a reasonable period of time not to exceed four months and thereafter return to work." California Government Code section 12945(a). A "related medical condition" is defined as "any medically recognized physical or mental condition related to pregnancy, childbirth or recovery from pregnancy or childbirth." California Code of Regulations, title 2, section 11035(u). A woman may be disabled because of pregnancy if she suffers from such conditions as severe morning sickness, gestational diabetes, pregnancy-induced hypertension, preeclampsia, or post-partum depression, because of which “she is unable because of pregnancy to perform any . . . essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy's successful completion, or to other persons.” California Code of Regulations, title 2, section 11035(f).
Time Off For PDL Is Not Paid By The EmployerAn employer is not required to pay an employee for time taken off work for PDL unless the employer pays for other temporary disability leaves for similarly situated employees.
State Disability
An employee may be entitled to state disability insurance benefits while on PDL.
Sick Leave
An employer may require an employee or an employee may elect to use any accrued sick leave during an otherwise unpaid portion of PDL.
Vacation Time
While on PDL “An employee may elect, at her option, to use any vacation time or other accrued personal time off . . . for which the employee is eligible.” California Code of Regulations, title 2, section 11044.
When Can PDL Be Taken?
PDL can be taken before and after childbirth for such periods during which the employee is unable to work because of pregnancy or a pregnancy-related condition. California Code of Regulations, title 2, section 11042.
Continuation of Health Insurance Coverage While on PDLThe employer must maintain and pay for health coverage for eligible employees who take PDL for the duration of the leave (up to four months) at the same level and conditions the coverage would have been provided if the employee had not taken PDL. The employer may recover health coverage premiums paid on behalf of the employee while the employee is on PDL if the employee does not return to work from PDL for reasons unrelated to the taking of a legally recognized leave of absence such as California Family Rights Act leave ("CFRA") (California Government Code §§ 12945.1, 12945.2, and 19702.3.) California Code of Regulations, title 2, section 11044.
Who Is Eligible For PDLPDL is available to all California employees disabled by pregnancy, childbirth, or a related medical condition who work for an employer with at least five fulltime or part-time employees. California Government Code section 12926(d). “There is no eligibility requirement, such as minimum hours worked or length of service, before an employee affected or disabled by pregnancy is eligible for reasonable accommodation, transfer, or disability leave.” California Code of Regulations, title 2, section 11037.
The Relationship Between PDL And FMLAPregnancy disability leave under PDL runs concurrently with leave taken under the federal Family and Medical Leave Act (“FMLA”)(Code of Federal Regulations, title 29, section 825.100, et seq.)(FMLA). California Code of Regulations, title 2, section 11045(a).
The Relationship Between PDL And CFRAPDL leave does not run concurrently with CFRA leave entitlement for an employee's own serious health condition. California Code of Regulations, title 2, section 11046(a). CFRA and PDL are two separate and distinct rights that employees have under California law. California Code of Regulations, title 2, section 11046(a).
“At the end of the employee's period(s) of pregnancy disability, or at the end of four months of pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date [provided that the entire CFRA leave was not taken prior to the PDL].” California Code of Regulations, title 2, section 11046(c). Thus, if the maximum amount of both types of leave is taken, the maximum total leave entitlement will be 4 months plus 12 workweeks of CFRA leave. California Code of Regulations, title 2, section 11046(d). Therefore, in California, the maximum entitlement of leave for a pregnant individual is "four months" plus 12 workweeks of CFRA leave (e.g. generally 7 months). If an employee works five eight-hour days per week, “four months” means 693 hours of leave entitlement for a standard fulltime employee (the working days in 17 1/3 weeks). California Code of Regulations, title 2, section 11042(a)(1).
PDL On An Intermittent Or Reduced Work Schedule BasisThe employee does not need to take the four months of PDL all at once or in one block of time. The employee's leave “may be taken intermittently or on a reduced work schedule when an employee is disabled because of pregnancy, as determined by the health care provider of the employee." California Code of Regulations, title 2, section 11042(a)(4). For example, the employee can use PDL to work only three or four days a week as opposed to her usual schedule of five days a week and the days the employee does not work will be subtracted from the overall four month maximum allowed.
Right To Return To Work After Taking PDLIf an employer grants an employee PDL, the employee is guaranteed a right to return to the same position (or to a comparable position if the employer can show the “employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).” If the employee requests a guarantee of reinstatement in writing, the employer must provide the writing to the employee. It is unlawful for an employer to refuse to reinstate the employee, unless an exception applies. California Code of Regulations, title 2, section 11043.
Reasonable AccommodationsAn employer must also provide reasonable accommodations for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests with the advice of her health care provider. California Code of Regulations, title 2, section 11040. One example of a reasonable accommodation is providing reasonable break time and access to a suitable location for the employee to express milk in private. California Code of Regulations, title 2, section 11035(s). Reasonable accommodations, other than those that result in a reduction of hours worked, do not affect the employee’s right to take up to four months of PDL.
Employees Must Notify Their Employers Of The Need For PDL Or Reasonable AccommodationsIf an employee wishes to request PDL, a transfer from her employer (e.g. transfer to an available alternative job position that is less strenuous or hazardous), or reasonable accommodations, the employee must give either written or verbal notice "sufficient to make the employer aware that the employee needs reasonable accommodation, transfer, or pregnancy disability leave, and, where practicable, the anticipated timing and duration of the reasonable accommodation, transfer or pregnancy disability leave." California Code of Regulations, title 2, section 11050(a)(1).
Employers Must Notify Employees Of Their PDL RightsEmployers must give notice to employees of their rights under PDL by posting and keeping posted a notice in a conspicuous place at the workplace. California Code of Regulations, title 2, section 11049
Contact UsIf you have not been granted a pregnancy disability leave, or you have experienced negative treatment or termination from having taken a pregnancy disability leave at your workplace, or if you believe your employer or former employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.