KHK 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.  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.

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