What leave benefits are pregnant employees entitled to in the state of California?

In  California, pregnant employees have two types of leave benefits: those granting them a right to take leave from work with job and benefits protection (PDL, CFRA and FMLA), and those granting them wage replacement from the state during times they are on qualifying leave (SDI/STD, PFL). This alphabet soup can be confusing, so let's look at each type separately, as it relates to pregnant employees.

The Right to Take Leave

The Fair Employment and Housing Act (FEHA) provides eligible employees with unpaid, job- and benefits-protected time off needed due to the medical disability of pregnancy, both before and after birth, referred to as Pregnancy Disability Leave (PDL). Employers with five or more employees must allow up to four months of leave, if needed, and there is no length of service requirement, so even recently hired employees are eligible for this leave. Group health benefits must also be continued on the same terms as if the employee were not on leave. An employer may require medical certification that shows the employee is disabled by pregnancy.

An employee who is disabled by her pregnancy and is entitled to disability leave may take the leave all at once or in increments. The law also requires employers to provide reasonable accommodations to an employee affected by pregnancy. If such accommodations include a reduced schedule or time off, that time can be counted toward PDL. 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 leave. However, the employer may require the employee to use, or the employee may elect to use, any accrued sick leave during the period of leave. An employee may also elect to use, at her option, any accrued vacation leave, personal leave or paid time off (PTO) during the period of leave. For most purposes, employees who are on pregnancy disability leave must be treated the same as employees who are on other types of short-term disability leave in terms of pay, benefits and other terms and conditions of employment.

The California Family Rights Act (CFRA) requires employers with 5 or more employees to allow eligible employees up to 12 weeks of job- and benefits-protected leave in a 12-month period. Employees are eligible if they have worked for the employer for 12 months, have worked 1,250 hours prior to the start of leave and have a qualifying reason for leave. For pregnant employees, CFRA leave cannot be used for the medical disability of pregnancy; it can only be used to bond with a new child. Therefore, PDL and CFRA leave cannot run at the same time; they are separate and distinct leaves. When PDL ends, CFRA leave will begin, and the employee will have an additional 12 weeks of leave to bond with the new child. Even if the employee is still disabled by the pregnancy after PDL expires, CFRA leave will still begin as bonding time; there is no requirement that the employee have no medical disability while taking CFRA leave for baby bonding.

The Family and Medical Leave Act (FMLA) is a federal law that requires employers with 50 or more employees to allow eligible employees up to 12 weeks of job- and benefits-protected leave in a 12-month period. Employees are eligible if they have worked for the employer for 12 months, have worked 1,250 hours prior to the start of leave and have a qualifying reason for leave. Unlike CFRA leave, however, FMLA leave can be used for the employee's medical disability due to pregnancy, and it can run concurrently with both PDL and the CFRA. Think of it running in the background, while PDL and CFRA leave run one after the other. The 12 weeks of FMLA leave are not additional weeks of leave; rather, they will run at the same time as the other two leaves.

The Right to Receive Wage Replacement

California State Disability Insurance (SDI) provides eligible employees with wage replacement due to the employee's medical disability. SDI is not a right to take leave; it is simply replacement income when an employee is already on an approved leave. Eligibility is based upon how much an employee has earned during the 5-18 months prior to leave and could last for the duration of the medical disability. Before benefits begin, there is a one-week waiting period that is not paid; that week can be paid through the use of employee vacation, sick or personal leave, as allowed by law or company policy. Once SDI benefits start, sick leave can only be used to make up the difference between SDI payments and full pay; if more sick leave is used, SDI payments will be reduced. Vacation pay is not considered to be in conflict with SDI payments, therefore, it can be used along with SDI if other leave laws and policy otherwise allow it.

Although SDI is a required state program, employers can instead apply to the state to provide their own short-term disability plan. If so, the employer's plan would govern, mirroring state law, and the employee would not likely be eligible for SDI.

California Paid Family Leave (PFL) provides eligible employees with wage replacement for up to six weeks per 12-month period to bond with a new child. Again, PFL is not a right to take leave from work; rather, it is simple wage replacement when an employee is already on an approved leave. Employees eligible for SDI benefits, either from the state or the employer's STD plan, will be eligible for PFL benefits. The benefit is available when leave is taken within the first 12 months after the baby is born. PFL and SDI benefits cannot run at the same time. Employers may require employees to use up to two weeks of vacation or PTO before PFL benefits begin, but they cannot require the use of paid sick leave in this way.

Summary

Although confusing, the most protected leave a pregnant employee in California can have under these laws is limited to seven months. Although the employee may only be eligible for a portion of the four months of PDL, she has the right to the full 12 weeks of CFRA leave to bond with the baby if she so chooses. Should an employee need more leave than these laws provide due to a continued medical disability, the Pregnancy Discrimination Act, the Pregnant Workers Fairness Act, the Americans with Disabilities Act and state antidiscrimination laws may require a reasonable accommodation to be made, which, in some cases, could mean more leave. Employer policies that are more generous than the law must also be followed.