Orange County Employment Attorney:
Olivia Wilde, Kerry Washington and now Carrie Mathison? It sure feels like everyone’s getting pregnant these days, which is why it’s no surprise that one of most common questions I get asked is: “How much time can I take off work for pregnancy leave?”
THE QUICK ANSWER
Like all legal questions, the correct answer is “Well, it depends,” but for all you impatient readers out there, the quick and dirty answer is: Subject to the important caveats below, at least four (4) months if you work for a small employer (between 5 and 49 employees) and at least seven (7) months if you qualify and work for a large employer (50 or more employees within a 75-mile radius).
THE MORE DETAILED EXPLANATION (which you should read)
Okay, so there’s basically two different types of leave that can combine together and add-up to seven (7) months, but not everybody qualifies for both, which is why I’ve laid out the specifics below.
(1) Pregnancy Disability Leave (PDL): 4 months
Pregnancy Leave: Up to four (4) months for disability caused by pregnancy, childbirth or a related medical condition. This means you can take the leave while you’re pregnant.
Eligibility Requirements: The employee must be pregnant, in childbirth or have a pregnancy-related medical condition. The employer must employ at least five (5) employees, full or part-time.
Right to Return to Work: The Employer must return the employee to the same job with the same pay and benefits.
Notes: Pregnancy Disability Leave includes prenatal visits, intermittent leave, reduced work schedule, postpartum depression and loss or end of pregnancy. The employer is also required to continue the employee’s medical benefits during the Pregnancy Disability Leave. Technically, Pregnancy Disability Leave is not four months, but rather “the amount of hours the employee would work in a four-month period.”
(2) Family Medical Leave Act (FMLA) / California Family Rights Act (CFRA): 3 months (12 weeks total)
Pregnancy Leave: 12 weeks of leave per year for a serious health condition of the employee (or the employee’s spouse, registered domestic partner, parent or child) or for the employee’s baby bonding.
- For CFRA, pregnancy is not a covered condition, so you can only use CFRA after childbirth, not before.
- An employee can start CFRA early (during pregnancy), but only if: (1) she has first exhausted PDL and (2) the employer voluntarily agrees to let the employee start CFRA leave early.
- For FMLA, pregnancy is covered as a “serious health condition,” so you can take FMLA before childbirth, while you’re pregnant.
- FMLA does not cover an employee’s domestic partner, but CFRA does.
Eligibility Requirements: The Employer must employ at least 50 or more employees within a 75-mile radius of the employee taking leave. The Employee must have worked for the employer for at least 12 total months and must have worked at least 1,250 hours within the past year. For FMLA, the 12 months of work must be within the prior year. This is not the case for CFRA leave.
Right to Return to Work: Both FMLA and CFRA require the employee to be returned to the same or comparable job, which is different from PDL (above).
Notes: For more about FMLA or CFRA, see explanations here. Basically, CFRA is California’s version of the FMLA (federal law) and the two differ in some respects when it comes to pregnancy and pregnancy leave, as outlined above. Take additional note that:
- FMLA and CFRA run concurrently, so you cant take them back-to-back, it’s one or the other.
- Both CFRA ad FMLA cover the employee’s spouse, so the father of a newborn (or newly adopted child) can take up to 12 weeks of leave for baby/child bonding or for the pregnancy/serious health condition of his wife.
- FMLA/CFRA (and PDL) are unpaid leaves, unless the employer voluntarily chooses to pay the employee a portion of his or her salary, which is awesome but hardly ever the case. But you can still apply for Paid Family Leave assistance through the EDD (see below).
OTHER IMPORTANT PREGNANCY LEAVE INFORMATION
Paid Family Leave:
You and/or your spouse should take advantage of this, as California is one of only four states that offers Paid Family Leave, where a new mother or father can receive up to six (6) weeks of Paid Family Leave (PFL) assistance from the state of California. This is similar to unemployment benefits and is also managed by the Employment Development Department (EDD), which does not involve the employer. You can sign up here on the EDD homepage.
Employer’s Own Pregnancy Leave Plan:
It’s not uncommon for big employers to have their own “fancy” pregnancy leave programs, which will sometimes offer more leave and more benefits than PDL + FMLA/CFRA. Keep in mind that PDL + FMLA/CFRA are simply minimum guidelines that employers must follow, so while employers cannot give less than those benefits, they can certainly offer more if they feel like it.
Consult an Employment Attorney When:
You should probably consult an employment attorney if you’re having trouble understanding the pregnancy leave process, which usually happens if you have a small employer with no HR department to talk you through the process.
Definitely consult an consult an employment attorney if your employer:
- Denies your pregnancy leave
- Pressures you to come back to work early
- Doesn’t return you to the same job duties or position or
- Retaliates against you and/or terminates your employment immediately before or after taking a pregnancy leave – both of which are HUGE violations and often result in claims for Sex (pregnancy) Discrimination and Wrongful Termination.
Hopefully this guide will help some of you new and expecting moms and dads out there. In the meantime, stay safe, know your rights and congratulations!