California has some of the most comprehensive laws protecting pregnant employees, offering disability leave, family bonding leave, protections for workers during pregnancy and for nursing mothers, and other related benefits. Employers should be aware of both state-specific regulations and federal laws to ensure compliance and protect the rights of employees.
This guide will clarify key legislation such as Pregnancy Disability Leave (PDL) and the California Family Rights Act (CFRA) for bonding; recent updates such as Assembly Bill 2123; and federal protections including the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act. It also addresses the federal Family and Medical Leave Act (FMLA), which often overlaps with California leave programs.
When in doubt, remember this key principle: Employers must treat pregnant employees the same as employees with other types of temporary disabilities in accordance with company policy or practice.
Types of Pregnancy-Related Leave
In California, pregnant employees have two types of leave benefits in addition to FMLA: those granting them a right to take leave from work with job and benefits protection (PDL and CFRA), and those granting them wage replacement from the state during times they are on qualifying leave (State Disability Insurance, Short-Term Disability Insurance, and California Paid Family Leave).
This SHRM guide looks at each type separately as it relates to pregnant employees. Here’s more on the various leaves available.
Job-Protected Unpaid Leave
Pregnancy Disability Leave (PDL): This leave, granted under the California Fair Employment and Housing Act (FEHA), is meant to be used during pregnancy by a person who becomes disabled by their pregnancy, or after their pregnancy to recover from birth. It is separate from family bonding leave, which California provides under another statute.
PDL applies to all private employers that have employed at least five or more full- or part-time employees for each working day in any 20 consecutive calendar weeks in the current or preceding calendar year. There is no tenure requirement; employees are eligible as soon as they are hired.
PDL provides up to four months of unpaid, job-protected leave to employees disabled by pregnancy, childbirth, or a related medical condition, with the total number of hours based on hours worked per week and the duration of the disability.
Should a pregnant person be disabled for more than four months, PDL also grants more extensive leave under its accommodation language.
Member Resource: Reasonable Accommodations for Pregnant Workers Policy.
California Family Rights Act (CFRA): Leave to bond with a new child is allowed under CFRA, a California law that provides job-protected leave tied to serious medical conditions of employees or their family members. To be eligible for CFRA leave, an employee must be either a full- or part-time employee working in California, have more than 12 months (52 weeks) of service with the employer, and have worked at least 1,250 hours in the 12-month period before the date the leave begins.
CFRA allows for up to 12 weeks of bonding time with a new child and does not cover pregnancy disability. At the end of the employee’s period(s) of pregnancy disability, or at the end of four months of pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks to bond with their child, if the child has been born by this date.
Companies cannot require employees to use their vacation prior to taking FMLA or CFRA leave. California employers cannot require the same for sick leave because of the California Paid Sick Leave law, or for the more general paid time off (PTO) if the employee is using PTO to meet their California sick-leave obligation.
Family and Medical Leave Act (FMLA): This federal law protects the job and benefits of employees who need time off to care for themselves or family members in medical situations. FMLA covers companies with at least 50 employees, and employees of those companies are only eligible for FMLA protections after they have worked at a company for 12 months and work at a location where the employer has at least 50 employees within 75 miles.
If an employee in California is eligible for both FMLA and PDL for pregnancy disability, or both FMLA and CFRA for family bonding, the state and federal leaves would run concurrently.
Member Resource: Managing FMLA
Reproductive Loss Leave: FEHA also grants employee leave following their own reproductive loss event or that of another person — such as a spouse or partner — if the employee would have been the parent of the child born or adopted. It is against the law for an employer to interfere with or deny an employee’s right to take leave after a reproductive loss if they meet the above criteria.
Employees who work for public employers of any size — or private employers with five or more employees — and have worked for the employer for at least 30 days before taking leave are eligible.
The law requires employers to provide eligible employees with a minimum of five days of leave for a reproductive loss event. Employees can, but do not have to, take their leave days consecutively. This means they can choose to take all five days at once or break up the days over a longer period, provided their leave is completed within three months of the reproductive loss event.
Wage Replacement Leave
Paid Family Leave: PFL provides wage replacement benefit payments to people who need to take time off work to care for a seriously ill family member, bond with a new child, or support a family member in the U.S. armed forces who is deploying to a foreign country. Eligible employees can receive benefits for up to eight weeks. Benefit amounts are 70% to 90% of weekly wages earned five to 18 months before the claim start date.
Effective Jan. 1, 2025, the benefits are immediately available, thanks to the enactment of Assembly Bill 2123.
Disability Leave: California’s short-term disability leave provides another option for wage replacement for pregnancy-related disability. Beginning Jan. 1, 2025 with the implementation of SB 951, many new State Disability Insurance and PFL claims receive higher benefit amounts, including up to 90% of wages for individuals making less than $63,000 per year, and 70% of wages for higher-income workers.
SHRM Resource: Key Facts and Difference Between PUMP and PWFA
PWFA and PUMP Act
Though they don’t deal as much with extended leaves related to pregnancy, childbirth, or family bonding, two other federal laws, the PWFA and the PUMP Act, address pregnant and nursing workers. Meant to address the lack of accommodations for pregnancy, childbirth, or related medical conditions, which translates into the reality that pregnant workers can be forced to choose between earning money at their jobs or quitting to protect their health or the health of their pregnancy, the PWFA provides reasonable accommodations to employees and applicants with limitations related to pregnancy, childbirth, or related medical conditions, while the PUMP Act requires employers to provide accommodations, including breaks, to parents who are nursing or expressing breast milk.
These steps are not meant to be, nor should they be, construed as legal advice, and employers should consult a California labor law attorney for further guidance with making pregnancy-related leave-of-absence decisions in their respective workplaces.
Step 1: Employee Provides Notice of Need for Leave
The employee must provide at least verbal notice to make the employer aware the employee needs CFRA, FMLA, or PDL-qualifying leave. The notice should state the reason for the leave and its anticipated timing and duration.
Organizations may require 30 days’ advance notice before FMLA, PDL, or CFRA leave is to begin if the need for the leave is foreseeable. If 30 days is not feasible (e.g., not knowing when leave will be required to begin, a change in circumstances, or a medical emergency), notice must be given as soon as practicable.
Employers may not deny leave needed due to an emergency or which is otherwise unforeseeable on the basis that the employee did not provide advance notice of the need for the leave or transfer.
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Step 2: Employer Determines Employee Eligibility and Leave Entitlement
Once the employer receives notice from the employee of their need for leave for pregnancy-related reasons, it must then determine which leave(s) they are eligible for and therefore entitled to.
PDL Eligibility: There is no length-of-service requirement for an employee to be eligible for PDL, and the legal protections apply to all employees who work for a covered employer. As a result, employees capable of pregnancy are eligible for pregnancy disability leave upon hire.
FMLA Eligibility: An FMLA-eligible employee is one who works for a covered employer, has worked for the employer for at least 12 months, has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles.
CFRA Eligibility: To be eligible for CFRA leave for family bonding, an employee must be either a full- or part-time employee working for a covered employer in California, have more than 12 months (52 weeks) of service with the employer, and have worked at least 1,250 hours in the 12-month period before the date the leave begins. As of 2023, there is no limitation on parents of the same child who work for the same employer each taking CFRA. Each parent is allowed to take up to 12 weeks of leave.
The following comparison chart can be used as a guideline in determining eligibility for FMLA, CFRA leave, and PDL leave under FEHA.
Comparison of the FMLA, CFRA, and PDL pertaining to pregnancy leave
| Family and Medical Leave Act | California Family Rights Act | California Pregnancy Disability Leave | |
|---|---|---|---|
| Pregnancy disability covered? | Yes, covers both pregnancy disability and birth, adoption, and foster care placement | Pregnancy not covered, as law is for baby bonding only | Yes, covers pregnancy-related disabilities |
| Covered employer | 50+ employees | 5+ employees | 5+ employees |
| Tenure requirement | 12 months and 1,250 hours in last 12 months | 12 months and 1,250 hours in last 12 months | None |
| Duration | 12 weeks | 12 weeks | 4 months |
| Medical/legal certification | Employer may require | N/A as it only covers bonding | Employer may require |
| Employee notice | 30 days if foreseeable, or as soon as practicable | 30 days if foreseeable, or as soon as practicable | 30 days if foreseeable, or as soon as practicable |
| Employer response | Within 5 business days unless extenuating circumstances | As soon as practicable, no later than 5 business days | As soon as practicable, no later than 10 calendar days |
| Intermittent/reduced leave | When medically necessary, in increments no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided that it is not greater than 1 hour. For baby bonding, must have employer's consent. | In 2-week increments; however, an employer may grant a request for CFRA leave of less than 2 weeks’ duration on any 2 occasions. | When medically necessary, increments no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than 1 hour. |
| Use of sick, vacation, or personal leave | Employee may elect, or employer may require use of employer provided sick, vacation or personal leave to run concurrently with unpaid FMLA leave. | Employee may choose, or employer may require. Using sick leave requires both employer and employee to agree. | Employer may require use of sick leave for unpaid portion of PDL. Employee may elect to use vacation or other paid leave, but employer cannot require this. |
| Continuation of benefits | Employer must maintain coverage under group health plan under same conditions. Can require employees to pay their portions of premiums. | Employer must maintain group health benefits. All other benefits and seniority must be maintained under the same conditions as other forms of leave. | Employer must maintain group health benefits. All other benefits and seniority must be maintained under same conditions as other unpaid disability leaves. |
| Right to reinstatement | Same or equivalent position. Key employee exception. | Same or comparable position. No key employee exception. | Same or comparable position unless employment loss or transfer would have occurred even if employee was not on PDL. |
Step 3: Employer Notifies Employee of Leave Eligibility and Entitlement
Once the employer has determined which leave(s) the employee is eligible for and entitled to, the employer must respond to their request as soon as possible, and no later than five business days from the date of the request. The eligibility response should clearly state whether the employee is eligible for CFRA leave or PDL. In addition to the response to the request for leave, the employer must also provide the employee with a notice informing the employee of her rights and responsibilities under the CFRA and PDL. Model notices are available on the California Civil Rights Department website.
Your Rights and Obligations as a Pregnant Employee is provided to employees covered only by PDL. Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave is provided to employees covered by both PDL and CFRA.
FMLA Form WH-381 must be sent within five days informing the employee of their rights and responsibilities under the FMLA. When an employee is using FMLA and CFRA leave concurrently, some employers will provide a combined notice.
Step 4: Employer Requests Certification
Before an employer designates leave as either FMLA or PDL leave, it should request that the employee provide any necessary certification to support the need for leave.
An eligible employee is entitled to PDL if their health care provider determines that the employee is unable to perform the essential functions of the job due to pregnancy or a related medical condition without undue risk to her or to others or to the successful completion of the pregnancy. Conditions include disability due to severe morning sickness and time off for prenatal care.
That same employee may be eligible for FMLA leave if they work for an employer with 50 or more employees and there is a pregnancy-related disability that qualifies as a “serious health condition” under FMLA. The two leaves would run concurrently, essentially using the same time period for both leaves if eligible for both.
The employer may require that PDL certifications include the following:
- The date on which the pregnancy-related disability commenced.
- The probable duration of the disability.
- A statement that, due to such disability, the employee is unable to perform the function of her position.
A sample health care provider certification form for pregnancy disability leave is available via the California Civil Rights Department website. The FMLA also provides a model medical certification form to establish FMLA eligibility for the employee’s own serious health condition; however, California employers are cautioned against using the federal model form due to medical privacy rules in California. The PDL certification is often sufficient in determining FMLA leave eligibility as well.
Member Resource: How to Comply with California's Paid Sick Leave Law
If an employer finds the medical certification inadequate or incomplete, they must provide the employee with a reasonable opportunity to fix any deficiency.
Under the FMLA, if the employer doubts the validity of the employee’s medical certification, the employer may require a second health care opinion, designated and paid for by the employer. However, the PDL regulations do not include provisions regarding an employer’s ability to obtain a second opinion.
Medical certification is not necessary for CFRA leave, as bonding time with a new child is available without regard to medical necessity.
Step 5: Employer Designates Leave as CFRA Leave, FMLA Leave, and/or PDL and Notifies Employee
Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA, PDL, and/or FMLA leave.
Employers should notify the employee of the designation of FMLA leave using Form WH-382. A combined Designation Notice for FMLA/CFRA/PDL leave can be used to notify the employee whether her FMLA/CFRA/PDL request has been approved or denied. If the employer has enough information when the employee initially requests leave to approve or deny, the employer may supply the Designation Notice at the same time as the Rights and Responsibilities notice.
Step 6: Employer Maintains Benefits
An employee must retain employee status during the period of the PDL and CFRA. In terms of benefits, that must include:
- Health care insurance coverage: This should be maintained and paid for by employers at the same level as if the employee had not gone on leave.
- Continuous coverage: Participation at the same level in employee benefits plans, including life, short- and long-term disability, or accident insurance; pension and retirement plans; stock option plans; and supplemental unemployment benefits.
- Seniority status: Accrual of seniority akin to what would happen if the employer were on any other type of leave, such as paid sick leave. PDL or CFRA leave may not constitute a break in service for purposes of longevity or seniority under any collective bargaining agreement or under any employee benefit plan.
The employee returning from a pregnancy disability or CFRA leave must return with no less seniority than they had when the leave commenced. 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, physical exam, or other qualifying provisions.
Step 7: Employer Tracks CFRA/PDL/FMLA Leave Taken
FMLA leave, CFRA leave, and PDL may each be taken all at once or on an intermittent or reduced-schedule basis. When tracking CFRA leave or PDL taken all at once, the employer simply deducts the total number of weeks, days, or hours the employee has been absent from work against their total leave entitlement. Here are points to consider when tracking pregnancy leave:
- Intermittent leave: Although all pregnant employees are eligible for up to four months of PDL if that leave is taken in one period of time, taking intermittent leave or working a reduced work schedule throughout an employee’s pregnancy will affect the number of hours remaining that an employee is entitled to take for a pregnancy disability once a baby is born. When leave is taken on a reduced schedule or intermittently, it may potentially increase the leave to more than four months since leave is converted into hours where when taken it can occur over a period of time to exhaust the entire amount of leave entitlement, extending the leave past four months at times.
- Tracking: Employers must track leave that employees are taking on an intermittent or reduced schedule basis. An employer should account for leave either by the hour or the shortest period of time that its payroll system uses to account for other forms of leave, whichever is shorter. 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 PDL, CFRA, or FMLA in increments of 30 minutes or less.
Member Resource: FMLA Absence Tracking (Calendar) Spreadsheet - Holiday considerations: If a holiday falls within a week taken as an FMLA, CFRA, or PDL leave, the week is nevertheless counted as a week of leave. If, however, the employer’s business activity has temporarily ceased for some reason and employees are generally not expected to report for work for a week or more (e.g., a school closing for two weeks for the Christmas/New Year’s holidays or summer vacation, or an employer’s closing the plant for retooling), those weeks do not count against the employee’s entitlement.
Step 8: Employer Reinstates the Employee
An employee who exercises their right to take PDL is guaranteed a right to return to the same position, and not a comparable position, and the employer must provide the guarantee in writing on request of the employee. However, if the employer has a permissible defense as described below, the employee may be reinstated to a comparable position instead.
As a condition of the employee’s return from PDL, the employer may require that the employee obtain a release-to-return-to-work certification from their health care provider stating that they are able to resume their original job duties. But the organization should only do so if it has a uniformly applied practice or policy of requiring such releases from other similarly situated employees returning to work after a nonpregnancy-related disability leave.
As with FMLA and CFRA leaves, an employee has no greater right to reinstatement to the same position or to other benefits and conditions of employment than those rights they would have had if they had been continuously at work during the pregnancy disability leave. This is true even if the employer has given the employee a written guarantee of reinstatement. A refusal to reinstate the employee to the same position or duties is justified if the employer proves, by a preponderance of the evidence, any of the following:
- That the employee would not otherwise have been employed in their same position at the time reinstatement is requested for legitimate business (such as a layoff pursuant to a plant closure).
- Each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer’s ability to operate the business safely and efficiently.
- The employer would not have offered a comparable position to the employee if they would have been continuously at work during the pregnancy disability leave or transfer period.
- There is no comparable position available.
- Under the FMLA, reinstatement of a key employee may be denied at the conclusion of FMLA leave if reinstatement would cause “substantial and grievous economic injury” to the employer.
If an employee is laid off during a pregnancy disability leave or transferred for legitimate business reasons unrelated to their leave, the employer is not required to maintain benefits or to reinstate the employee, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise.
Step 9: Employer Maintains Accurate Records
Employers should maintain detailed, written records of all aspects of the leave process and maintain them in a lawful manner (securely and separately from regular personnel files) for the required length of time in accordance with California laws regarding record retention requirements and periods.
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