KH&K mom, and employment lawyer, takes maternity leave questions personally

By Rachel Hulst

As a woman, young mom and employment lawyer, I’ve never been more popular amongst my friends.  These are friends who, until recently, knew nothing about what I actually did for work.  Yes, they knew I was an attorney.  But that knowledge was only accompanied by a few lawyer jokes and the age old question: have you seen the movie “A Few Good Men”?  “You can’t handle the truth!  Do you use that line in court?”  I didn’t have the heart to tell them, “no”.

Eleven years in, I’m finally gaining true respect amongst my peers.  Why is that?  Well, they are working women who have now found themselves in a predicament: pregnant and no clue what they are entitled to under California law.  And frankly, I don’t blame them.  They are not alone.  Many other women, HR professionals, company handbooks and even lawyers find this a difficult inquiry.

And really, it is difficult.  There are multiple statutes with all these acronyms (FMLA, CFRA, PDA, FEHA, ADA, PFL) that overlap and intertwine, depending on your particular situation and your particular inquiry.  Some statutes deal with leave time, some deal with pay, some deal with “bonding”, some deal with disabilities and some combine near all of the above.  How in the world do we piece this all together?

I must admit, when I got pregnant, I felt empowered, knowing that I actually knew my legal rights.  Normally, I’m advising employers and rewriting handbooks to ensure their legal compliance of these leave laws, but now it took on a different meaning. So, after sharing my knowledge with yet another expecting friend recently, I felt compelled to write about it.

Like anything in life, there’s some good news and some bad news.  The good news for expectant mothers is that California is probably the most employee-friendly state when it comes to maternity leave.  The bad news is that employers are not required to provide any paid leave.  But, you probably have to move to another country to get those kinds of benefits anyway.

Here’s the basic premise.  It is easiest to think about the inquiry in terms of two questions: 1) how much leave time (time off) am I entitled to? 2) do I get any pay?

Leave Time

The standard pregnant woman in California will be entitled to 4 ½ months leave time (with guaranteed job protection).  Legally, this is how it is broken down:

The Pregnancy Disability Act (“PDA”, a section of California’s Fair Employment and Housing Act “FEHA”) provides for up to four months of leave time for disabilities related to pregnancy, childbirth or related medical conditions.  Note that the PDA applies to all employers with five or more employees, which includes part time workers employed on a regular basis.  There is no length of service requirement under the PDA so you’re covered even if you just started in a new position.  These same pregnancy related disabilities could also be considered “serious health conditions” covered under the Family Medical Leave Act (“FMLA”).  The FMLA provides for job protected leave for up to 12 weeks for serious health conditions.  It applies to all employers with 50 or more employees within a 75 mile radius and generally, an employee is required to have worked at least 1250 hours in the previous year.  Accordingly, a woman who just gave birth is simultaneously covered under both the PDA and FMLA for a leave of absence following childbirth.  Specifically, she is considered disabled for 6 weeks if she has a vaginal birth and 8 weeks after a Cesarean birth=6-8 weeks leave time +

The California Family Rights Act (“CFRA”) provides for 12 additional weeks for bonding with your child.  Note that like FMLA, the CFRA applies to all employers with 50 or more employees within a 75 mile radius and generally, an employee is required to have worked at least 1250 hours in the previous year =12 weeks

6-8 weeks+12 weeks=18-20 weeks (approximately 4 1/2 -5 months of job protected leave)

Now, of course, there are caveats.

Additional Disabled Status

If you have a pregnancy or childbirth related disability that qualifies under the PDA/FEHA your leave extends from 6-8 weeks up to 4 months.  So, that 4 ½ months could amount to a total of 7 months (4 months disability plus 12 weeks of “bonding time”). However, you must actually be disabled during that entire 4 month period which is why the typical pregnant woman will not be entitled to this much leave.  In the unusual circumstance that a woman has a lingering disability beyond 4 months as a result of pregnancy, she may be entitled to additional leave time as an accommodation under the general provisions of the FEHA relating to disabilities.

Intermittent Leave

While an employer is not required to give you time off for general morning sickness, the four months does include periodic time off for severe morning sickness or if you need to take time off for prenatal care.

Smaller Companies

If you (1) worked at the company for less than a year with less than 1250 hours worked in that year; and/or (2) there are less than 50 employees working for the company within a 75 mile radius of your location of employment than you are not entitled to the 12 weeks for bonding—leaving you with only 6-8 weeks time off.

Change in Company Status During Leave

And while generally an employer is required to keep your job open during the 4 ½ month period, there are certain situations, ie: layoffs, that may preclude the employer from doing so.

Pay

While rare, some employers do provide paid maternity leave.  If an employer provides paid leave for other temporarily dsiabled employees, paid leave must all be provided for pregnant employees.  Those employees who are not entitled to such pay from their employer, are entitled to pay from the state.  As long as you are an employee (and not an independent contractor), who’s employer pays into state disability insurance (“SDI”), you are entitled to state disability benefits for 6-8 weeks that amounts to approximately 60 percent of your salary for the time that you are disabled.  Note that these are disability benefits so they are not taxed.

You are also entitled to receive 6 weeks of pay under the Paid Family Leave (California is one of just a few states who has this law) for bonding with your child.  That is also offered through the same agency that governs SDI payments (The Employment Development Department, “EDD”) and also amounts to about 60 % of your salary, but those benefits are taxed.

If you’re lucky enough to work in San Francisco, you are also able to use up to 9 days of accrued sick pay a year for days that you are out on pregnancy leave.  Of course, on the days you receive this pay, you will not be entitled to pay from the state.

Even more than expectant moms, the employers I advise need to be aware of these laws—handbook policies are often out of date and do not consider each and every potential statute that needs consideration.  Failure to inform HR representatives about how these laws interact and failure to explain them accurately to employees could open up employers to unnecessary law suits.  So, we all gain from this knowledge.  Perhaps one day it’ll be simpler; for now, I remain a popular guest at cocktail parties.

For more information:

SDI/Pregnancy link to EDD:

http://158.96.229.240/direp/difaq1.htm#Pregnancy

PFL link to EDD:

http://www.edd.ca.gov/Disability/FAQs_for_Paid_Family_Leave.htm

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13 Responses to KH&K mom, and employment lawyer, takes maternity leave questions personally

  1. Cathy Peters says:

    This is very helpful information; thank you for posting. I have a question- 12 weeks time off to bond w/ baby under CFRA starts after the disability period ends, correct? My Dr. (ob-gyn) extended my disability period by two weeks b/c of a possible hernia (after 8 weeks disability as a result of a c-section), and the state of CA extended my disability payments accordingly (by 2 weeks), so it would follow that the 12 weeks starts after this total 10 week period ends, correct? The issue is that the company, Matrix, which helps to coordinate leave time details for my employer (a large corporation) has “denied” the additional two weeks of disability b/c of a “lack of info” (so I will be receiving no additional disability payments beyond what the state of CA provides during this two week period), and is stating the 12 week bonding period under CFRA begins after the 8 week disability period (not 10 weeks).

    So in this case, when does the 12 week CFRA period begin- after the 10 weeks disability recognized by my Dr. and the state of CA (per disability payments), or after the 8 weeks as defined by Matrix? Matrix has not been very helpful in explaining all of my rights to me- even to the extent of asking me at around the 10 week point, “how come you’re not back at work yet?” I had to tell them that I’m taking additional time off under CFRA (even though they’re supposed to be the ones advising me on this info/my rights, etc)- it’s been rather frustrating.

    If you could possibly help me w/ an answer to my question above, I would be extremely grateful! And yes, I can understand why you’re popular among your pregnant friends, too- in my experience (having had two children born while working at two different large companies), employers don’t seem to be very helpful in fully explaining all of the options available to new mothers in regards to potential leave times, etc.

    Best regards,
    Cathy Peters

    Reply
  2. Rachel Hulst says:

    Cathy,

    Assuming that you have worked at your company for more than a year with at least 1250 hours of service and there are 50 employees working for your company within a 75 mile radius of your location of employment, you are entitled to an additional 12 weeks under CFRA. You are correct that the 12 weeks starts AFTER your 10 weeks of disability (you are actually protected for up to 4 months time of pregnancy or childbirth related disabilities).

    Reply
  3. Naomi says:

    I’m a RN who was offered a job to begin sometime mid-May. I have been looking for work for almost a year now since I moved here. This job offer is for a military hospital in northern CA, but it’s a contracted position from an out of state agency. I applied for this position almost a year ago, and just received the call this week that a position opened up. The only problem is, I am 30 weeks pregnant and haven’t informed them yet of my pregnancy. We’ve only been in contact via telephone and email. Should I tell them I am pregnant, and if I do, do I qualify for any Maternity Leave? And how long? They need me to work part-time in May and full-time starting in June. I’m due first week of July. I really want this job b/c it’s in my field of nursing and mostly desk job for me. Also, RN jobs are hard to come by right now. Please advise, should I not waste their time or should I go for it and ask for maternity leave so soon after hire?

    Reply
    • Jane Smolen says:

      Would love to know Rachel’s thoughts on the RN am in the same position

      Reply
  4. Linda says:

    “However, that pay is only available to those employees who would otherwise qualify for leave under the FMLA or CFRA—meaning that you need to work for an employer who has 50 or more employees within a 75 mile radius. If you don’t, you are not entitled to 12 additional weeks of leave time and therefore, no pay for 6 of those weeks.”

    I thought the eligibility for Paid Family Leave was for any employees that pays SDI taxes. Please advise

    Reply
  5. LeAnn says:

    The company that my employer uses will only give me 6 weeks disability pay even though I had a C-Section. Is this correct? I’ve been told that in California the law states I would recieve 8 weeks pay for a C-Section and 6 weeks for a vaginal birth. Any help would be appreciated.

    Reply
  6. Rachel Hulst says:

    LeAnn,

    You would definitely be entitled to 8 weeks pay of disability benefits through the state of California. Whether or not you are entitled to disability benefits paid by your employer (or short term disability policy) would depend on your employer’s policy. If the policy states they offer only 6 weeks of pay, that may be all you are entitled to. However if the policy provides “for as long as you are disabled” (or something to that effect), you should be entitled to the 8 weeks (providing a doctor’s note may help if you have not already done so). In the end, nothing in the law actually requires your employer to pay (just to give you the time off).

    Reply
  7. Kristy says:

    I am confused on the eligibility for fmla/cfra. I work for a pharmaceutical company and there headquarters are in New Jersey where they have 450 employees however my territory is in San Francisco, Ca and there are’t 50 employees in a 75 mile radius..? So I’m confused on if I qualify by that definition. Can you clarify for me? Thanks so much for your help!

    Reply
    • ja says:

      Give us a call and we’ll be happy to discuss..

      Reply
  8. Lindsey says:

    Hi,

    Thank you so much for posting! I wish there was somewhere I can go that only pertains to companies with less than 50 employees that can tell me everything I need to know. It gets so confusing that I’d love some clarification that pertains to only companies with less than 50 employees total.

    Our company is less than 50 employees and I’m 30 weeks pregnant. I believe I missed out on my maternity leave with my 1st child since I was pretty much the first woman in the firm to take maternity leave and just filed whatever I looked up online and understood. I think I was paid by SDI for 6 weeks at whatever the fraction is of my pay rate, but that was it. I’m not sure if I may have missed out on more!

    Could you please let me know what I’m entitled to (PDL and anything else) as an employee at a company that has less than 50 employees in San Francisco, CA? I just want to make sure I’m getting what I can (time-off and pay-wise) this time around.

    Thanks in advance!!!

    Reply
  9. Laura says:

    My leave has easily been handled through my hr dept. However my husband works for an employer with less than 50 employees and the hr “guy” says he’s not eligible for any leave paid or unpaid. He’s only been allowed 2 vacation days also. We’ve searched the Internet and called all the ca state phone numbers but he seems to fall into this black hole category. Is he eligible for any benefits or protection?

    Reply
  10. Ashley says:

    The 4 1/2 months of job protected leave you mention is from the birth of the baby, correct? But I thought you could also take up to 4 weeks before the baby is born. This would make the entire leave for 22 – 24 weeks (5 – 5 1/2 months). This is only if you are eligible for both FMLA and CFRA. I’ve had a rough time with my HR department – they think I’m asking for more than what I’m entitled to, but my doctor wants me to start maternity leave at 36 weeks.

    4 weeks prior to birth (PDL/FMLA)
    6-8 weeks after birth depending on delivery type (PDL/FMLA)
    12 weeks baby bonding time (CFRA)
    Total: 22 – 24

    Reply
    • Rachel Hulst says:

      Hi Ashley,

      Assuming your doctor deems you disabled for that time period, and you are otherwise entitled to CFRA leave, you would be entitled to the 4 weeks prior to the birth of your baby in addition to the 4 1/2 months following the birth of your child.

      The 4 1/2 months time off mentioned above is in relation to what we call a “standard” pregnancy for a woman working for a company of 50+ employees. With that 4 1/2 months, a woman is only using 6 weeks of her leave under the PDA/FMLA (the rest is 12 weeks under the CFRA.) You will be using 10 weeks of your PDA/FMLA (4 weeks prior to the birth and 6 weeks following) because you are disabled during that time period. You still have more time left for the disability portion of your leave under the PDA (another approximate 7 weeks) if you remain disabled for longer than 6 weeks after the birth of your child. You then still have 12 weeks under CFRA adding onto that for baby bonding. So, in short, you are able to take the 4 weeks prior +6 weeks following +12 weeks following, which equals approximately 5 1/2 months.

      Note in 2013, new pregnancy regulations were enacted in California; one aspect of such is that those 4 months are now calculated slightly differently. The definition of “up to a total of four months time (or 88 work days for a full-time employee or up to the average days/hours worked within 17.3 weeks or four calendar months) is now slightly different for full and part time employees. For full-time employees working 40 hours per week, that amounts to 693 hours of leave entitlement. For employees who work less than 40 hours a week or work a schedule that varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave will be used to calculate the employee’s normal work month. Accordingly, part-time employees are entitled to leave on a pro rata basis.

      That said, I would not anticipate that this would affect your time off.

      Reply

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