People Operations | Management

Pregnancy Disability Leave Act

California law has separate statutory schemes for pregnancy disability leave (PDL) and medical and family leave. The California laws were enacted at different times, both prior to the passage of FMLA.

The Pregnancy Disability Leave Act (PDLA) provides eligible employees with unpaid, job-protected time off due to an inability to perform essential job functions due to pregnancy, childbirth or a pregnancy related condition for up to four months.

The PDLA is part of the California Fair Employment and Housing Act (FEHA) and requires employers with five or more employees to provide employees who are disabled by their pregnancy a reasonable period of leave, not to exceed four months. An employee who is disabled by her pregnancy and is entitled to PDL may take the leave all at once or in increments. An employer is not required to pay wages to an employee taking PDL, unless it has a policy of continuing the payment of wages for other types of temporary disability leaves. However, the employer may require the pregnant employee to use, or the employee may elect to use, any accrued sick leave during the period of leave. For most purposes, employees who are on PDL must be treated the same as employees on other types of disability leave in terms of pay, benefits and other terms and conditions of employment. There is no length of service requirement, so even recently hired employees are eligible for this leave.  

Effect on seniority and benefits. An employee who takes PDL retains the status of employee during theperiod of the leave. Furthermore, the leave does not constitute a break in service for purposes of longevity or seniority under any collective bargaining agreement or under any employee benefits plan. Benefits must be resumed upon the employee’s reinstatement in the same manner and at the same levels as provided when the leave began, without any new qualification period or physical exam.

If an employer provides health benefits under any group health plan, the employer is obligated to maintain and continue to pay for any portion of the health insurance coverage premiums they normally pay, up to four months, while a woman is out on PDL.

An employer may require an employee to use any of her accrued sick leave during the otherwise unpaid portion of her pregnancy leave. Also, a woman may request the use of her sick leave, vacation leave or any other leave credits she has in order to receive compensation during the otherwise unpaid portion of her PDL.

Extending the four-month PDL by adding sick leave, vacation leave or any other leave credits to the PDL is at the discretion of the employer. Such requests should be answered in the same manner as similar requests for non-pregnant employees.

An employee may, however, be entitled to additional leave under CFRA to bond with the baby, bond with an adopted child or care for a parent, spouse or child with a serious health condition.

Also, if the four-month leave under the PDLA is exhausted and additional disability leave is required by the employee’s health care provider, the employer may, but is not required to, grant leave under CFRA prior to the birth. Finally, the FMLA runs concurrent with the FEHA or the CFRA. If an employee has no complications with her pregnancy, she could be entitled to a recovery period of approximately six weeks that her doctor could deem to be disability related. In that case her FMLA leave and her FEHA leave would begin at approximately the time of delivery. After exhausting her six weeks of FEHA, CFRA leave would begin. In this case, the employee could receive 18 weeks of job-protected leave.

Leave requirements. An employer must provide up to four months of disability leave for a woman who is disabled due to pregnancy, childbirth or a related medical condition. Effective December 30, 2012, the definition of "four months" has been changed. Under the new language, the maximum leave of four months per pregnancy is defined as the number of days the employee would normally work within four calendar months (one third of a year equaling 17 1/3 weeks), if the leave is taken continuously, following the date the pregnancy disability leave commences. If an employee's schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave is to be used for calculating the employee's normal work month. Thus, the total amount of leave available will be based on a "one third" year measurement of an employee's normal work schedule.

Example: A full time employee who works 40 hours per week would be entitled to 693 hours of leave based on 40 hours per week times 17 1/3 weeks. Similarly, an employee who normally works 20 hours per week would be entitled to 346.5 hours of leave whereas as an employee who normally works 48 hours per week would be entitled to 832 hours of leave.

However, if an employer provides more leave time 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.

Eligibility for pregnancy leave. A woman who works for a covered employer is eligible for PDLregardless of the length of time she has worked for the employer. Further, an employee does not have to work full time in order to be eligible.

Conditions for which a leave may be taken. Pregnancy leave is required only when a woman isactually disabled by her pregnancy, childbirth or a related medical condition. This includes needed timeoff for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery fromchildbirth and any related medical condition. Additionally, postnatal care, bed rest, gestational diabetes,pregnancy induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy and recovery from childbirth are examples of other medical conditions that could give rise to a leave of absence. With respect to breastfeeding, lactation, without medical complications, is not considered a disabling related medical condition entitling the employee to pregnancy disability leave,although it may require another reasonable accommodation.

Furthermore, a woman does not have to be completely incapacitated or confined to her bed to qualify as being disabled by pregnancy. However, as a general rule, a woman must be unable to perform one or more essential functions of her job without undue risk to herself or to other persons or without undue risk to successful completion of her pregnancy. It is the medical opinion of the woman’s physician or healthcare provider that determines whether she is disabled by pregnancy or a related medical condition.

A woman who takes a PDL is also entitled to take a CFRA leave if she meets the eligibility requirements for a CFRA leave. That means that a woman who is eligible for CFRA leave could take up to four months of PDL for her pregnancy disability and could also be entitled to up to 12 weeks of CFRA leave to bond with the baby or for another CFRA-qualifying event, such as to bond with an adopted child or to care fora parent, spouse or child with a serious health condition.

Intermittent leave or reduced work schedule. Leave taken for pregnancy disability does not have to betaken at one time. Leave can be taken before or after birth or at any period of time the woman is physically unable to work because of the pregnancy or pregnancy-related condition. Periods of leave maybe totaled in computing the four months of leave. Periodic absences for pregnancy-related illness of limited duration taken prior to an actual leave may be subtracted from the total leave entitlement period.However, if the employer does not subtract intermittent leave from other types of disability leave, the employer may not subtract from PDL.

An employer may account for increments of intermittent leave using an increment no greater than the shortest period of time the employer uses to account for use of other forms of leave, provided it is no greater than one hour. For example, if an employer accounts for sick leave in 30 minute increments and vacation time in one hour increments, the employer must account for pregnancy disability leave in increments of no more than 30 minutes. Alternatively, if an employer accounts for other forms of leave in two hour increments, the employer must account for pregnancy disability leave in increments no greater than one hour.

Reasonable accommodation. Employers are required to provide reasonable accommodation to a pregnant employee when requested, with the advice of her health care provider related to her pregnancy,childbirth or related medical condition. It is unlawful to deny a request for reasonable accommodation made by an employee affected by pregnancy if:

    •  the employee's health care provider advises that a reasonable accommodation of the employee's pregnancy related condition is medically advisable, and 
    • the requested accommodation is reasonable. 
Whether an accommodation is reasonable is a factual determination to be made on a case by case basis taking into consideration factors such as the employee's medical needs, the duration of the accommodation, the employer's past and current practices and other factors. The employee and the employer must engage in a good faith interactive process to evaluate the requested accommodation.

If a woman’s health care provider indicates that intermittent leave or a reduced work schedule is medically advisable and foreseeable based on planned medical treatment, an employer may require the employee to transfer to an alternative position for which the employee is qualified. The alternative position must better accommodate recurring periods of leave than the employee’s regular job. Although the alternative position need not have equivalent duties, it must have an equivalent rate of pay and benefits, and the employee must be qualified for the position. A transfer to an alternative position may include altering an existing position to accommodate the employee’s need for intermittent leave or a reduced work schedule.

Additionally, the regulations refer to other Fair Employment and Housing Act regulations to define the interactive process. Generally speaking, employers must attempt to have a discussion with the employee about the accommodation she is requesting and the possibility of accommodation options. The interactive process discussion should be clearly documented by the employer.

Notice requirements. An employee must give advance notice prior to taking PDL or for requesting to transfer to a less strenuous or hazardous position. If possible, a woman who is taking PDL must provide her employer at least 30 days advance notice before pregnancy disability or transfer begins. This notice should include the date the leave will commence and the estimated duration of the leave. If 30 days advance notice is not possible due to lack of knowledge of when leave or a transfer will begin, because of a change in circumstance or because of a medical emergency, notice must be given as soon as practical.Terms of 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.

All employers are required to provide notice to their employees of the right to request PDL or transfer to a less strenuous or hazardous position. This notice should be posted in a conspicuous place where employees tend to congregate. Employers who have employee handbooks are required to include information about pregnancy leave rights in their handbooks. For those employers who are subject to CFRA, they may include both PDL and CFRA leave requirements in a single notice.

Medical verification of inability to work. An employer may require an employee to obtain medicalverification of her inability to work because of pregnancy only if the employer requires such verificationfrom other temporarily disabled employees. However, an employer may not require verification fromanyone other than the pregnant employee’s own doctor or health care provider. Similarly, an employer may require medical verification that continuing work will not be hazardous to the pregnant woman as long as it is done in the same manner as verification that might be required for other types of disabilities.

Employers may require an employee to obtain medical verification of the need for reasonable accommodation from the employee’s own health care provider related to her pregnancy, childbirth or related medical condition.

Reinstatement. A woman who takes PDL and returns within the four-month period is guaranteed the right to return to her same position. An employer can reinstate a woman who takes PDL to a comparableposition only if her same position is no longer available, such as in a layoff due to plant closure. If that isthe case, the employer should offer a position that is comparable in terms of pay, location, job content andpromotional opportunities unless the employer can prove that no comparable position exists. An employer cannot refuse to return a woman who has taken a pregnancy leave to her original position if they like her temporary replacement better or if, while she was out on leave, her employer identified performance deficiencies that existed prior to her leave.

Leaves that extend beyond four months. If the woman takes a CFRA leave for bonding with the baby,for bonding with an adopted child or to care for a parent, child or spouse with a serious health condition,in addition to PDL, she has a right to return to either her original job or to a comparable job. However, if the pregnancy disability extends beyond the four months or the woman takes an elective leave that is not a CFRA leave, a woman is entitled to the same rights given to other employees who have taken leaves for reasons not related to pregnancy.