discrimination harassment retaliation

Pregnancy-Related Leave of Absence

FAQ’s Regarding Pregnancy Related Leave of Absence

California’s Pregnancy Disability Leave Act (PDLA) affords pregnant employees the opportunity to take a pregnancy related leave of absence for pregnancy-related disability leaves.  California law protects employees against discrimination or harassment because of an employee’s pregnancy, childbirth or any related medical condition (referred to below as “because of pregnancy”). California also law prohibits employers from denying or interfering with an employee’s pregnancy-related employment rights.

With few exceptions, employers must guarantee the employee’s position for up to 4 months while the employee is disabled as a result of pregnancy.  If the employer has 50 or more employees within a 75-mile radius of the employee, the employer may be required to grant the employee an additional 12 weeks of unpaid time off to bond with the newborn child.  Although pregnancy disability leave is usually unpaid, employees may be eligible for state disability benefits.  Employees may also be eligible for up to 6 weeks of state disability benefits while the employee bonds with the child under California’s Paid Family Leave.

Employers and employees do not always understand their pregnancy leave rights and obligations.  The following answers some of the most common questions employees and employers have regarding California’s pregnancy disability leave law.

Does every employer have to provide pregnancy disability leave?

California’s PDLA is part of the Fair Employment and Housing Act.  Therefore, any business with 5 or more employees is required to comply with the PDLA and provide pregnancy disability leave.

Does the company have to publish or post its PDLA policy?

The PDLA requires employers to publish its PDLA policy in the employee handbook if the employer has a handbook. The PDLA also requires employers to post its PDLA policies in a place where employees can view the poster. The DFEH has created a sample poster employers can use.  There are two versions of the standard DFEH poster, depending on whether the employer has more than 50 employees working within a 75-mile radius.  The poster is typically included with the multi-law poster employers purchase.

The poster, and any PDLA policies, should explain the employee’s leave entitlement rights and obligations, when an employee is entitled to PDLA leave, and what happens to an employee’s benefits while on PDLA leave.

Once an employee notifies the employer that the employee requires time off work due to a pregnancy-related disability, the employer must guarantee in writing that the employee can return to work in the employee’s same position if the employee requests a written guarantee.

What happens to an employee’s health insurance benefits while the employee is on PDLA leave?

Employers are required to continue employee group health coverage during your PDL at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the PDLA leave.  If an employer normally pays 100% of the medical insurance coverage, then the employer must continue to pay 100% of the medical insurance coverage while the employee is on PDLA leave.  If the employee is responsible for a portion of the medical insurance premiums, then the employee will need to make arrangements to continue to pay her portion of the medical insurance premiums while on the PDLA leave.  If an employee fails to pay her portion of the health insurance premiums while on PDLA, the employer may cease making its payments and offer the employee the opportunity to continue coverage through COBRA.

How much leave is an employee entitled to take under the PDLA?

Employees may take “up to” 4 months of unpaid time off while the employee is disabled as a result of pregnancy.  Once the employee is no longer disabled as a result of pregnancy, the employee must return to work even if the employee has not exhausted the full 4 months of leave.

What if the has exhausted her leave before her doctor releases her to return to work?

Although the PDLA only requires the employer to provide up to 4 months of unpaid leave under the PDLA, if the employee’s medical condition qualifies as a “disability” under state or federal disability discrimination laws the employer may be required to provide additional time off work as a reasonable accommodation for the disability.  For example, some courts have held that post-partum depression is a disability, and employers may be required to provide additional time off work as an accommodation for the disability.

Does PDLA leave have to be taken all at once?

No.  PDLA leave may be taken on an as-needed basis as required by your health care provider, including intermittent leave or a reduced work schedule, all of which counts against your four month entitlement to leave.

What if the employee does not need to take time off work, but requires other accommodations?

The PDLA requires employers to reasonably accommodate medical needs related to pregnancy, childbirth or related conditions.  Some common accommodations include temporarily modifying work duties, providing a stool or chair, allowing more frequent breaks, transferring the employee to a less strenuous or hazardous position (where one is available).  The accommodations are required if medically needed because of the pregnancy, and should be supported by a note from the employee’s health care professional.

Does the PDLA allow an employee to take time off work to bond with the newborn?

No.  Although California employees may be eligible for up to 6 weeks of Paid Family Leave, PFL is not a protected leave.  If the employer has more than 50 employees within a 75-mile radius of the employee, the California Family Rights Act requires the employer to provide up to 12 weeks of unpaid family bonding leave.  So, if the CFRA applies, the employee could take 4 months of unpaid leave under the PDLA while she is disabled as a result of pregnancy, and then take an additional 12 weeks of unpaid family bonding leave under the CFRA.  Depending on whether the employee has any other disabilities, the employer may be required to provide additional time off determined on a case-by-case basis.

What kind of notice should an employee provide prior to taking PDLA leave?

When the need for the leave is foreseeable, the employee should provide at least 30 days’ notice prior to taking the leave.  When the need for the leave is not foreseeable, the employee should notify the employer of the need for the leave as soon as the need becomes known.

What kind of medical documentation is necessary in order to substantiate a pregnancy-related disability leave of absence?

Except in the case of a medical emergency, employers may require written medical certification from a health care provider substantiating the need for the leave before approving the leave.  The medical documentation only needs to provide sufficient information for the employer to determine that the leave of absence is for a pregnancy-related disability, and they type or amount of leave required (e.g., intermittent, estimated length of time, etc.).   The employer must provide at least 15 days for the employee to submit the medical certification.   The employer may also require a certification that you are able to return to work, with or without reasonable accommodations, after you are no longer disabled as a result of the pregnancy.

Are fathers entitled to time off under the PDLA?

No.  The PDLA only applies to employees who are disabled as a result of pregnancy.  Depending on the size of the employer, fathers may be entitled to time off under either the federal Family Medical Leave Act or the California Family Rights Act to help care for the mother of their child or to bond with the child.

Are employers required to provide any accommodations after the child is born?

Yes.  Employers are required to provide a reasonable amount of break time and use of a room or other location in close proximity to the employee’s work area to express breast milk in private.

Can the employer require an employee to use accrued paid sick leave for PDLA leave?

Yes.  An employer can require an employee to use accrued paid sick leave.  The employee can choose to use accrued vacation or other paid time off.

The company is about to go through a layoff.  If the employee takes PDLA leave, can the employer still proceed with the layoff?

Yes.  An employee on PDLA is entitled to the same rights and benefits the employee would have received had the employee not taken the leave of absence.  If the employer can establish that the employee would have been laid off regardless of the PDLA leave, there is no violation of the law.