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: