Business & Corporate Articles


A Snapshot of Pregnancy and Maternity Leave Laws Applicable in California

Even if you are not pregnant or thinking about having a child this brief article is worth a quick read. Chances are you or someone you know will encounter this complex web of laws at some point in time as either employee or employer and this article will give you a starting place of what laws exist and where to look for more information.

Because the laws related to pregnancy, child birth, and baby bonding have developed over time, the laws protecting rights related to those life events—and all that goes with them—are not found in a single location. Rather, there are a number of applicable and overlapping statutes and regulations at both the state and federal levels. The laws can be broken down into two main categories: (1) job protection laws; and (2) wage replacement laws. Discrimination laws may also come into play, however, they are outside the scope of this article.     

Job and Benefit Protection

Family Medical Leave Act of 1993 (“FMLA”) (29 U.S.C. §§ 2601-2654) – baby bonding and disability leave

Under the FMLA, eligible employees are entitled to take up to 12 weeks of job and benefit protected leave during a 12-month period for several reasons, including: (1) an employee’s serious health condition which renders the employee unable to perform one or more essential functions of the employee’s position; and (2) the birth of a child to an employee, to care for the child. 29 U.S.C. §§ 2612(a), 2614.

California’s equivalent to the FMLA is housed within the Fair Employment and Housing Act (Cal. Govt. Code §§ 12900-12996) under the pregnancy disability leave law (“PDL”) (Cal. Govt. Code § 12945) and the California Family Rights Act (“CFRA”) (Cal. Govt. Code §§ 12945.2 and 19702.3). Generally, PDL leave is taken before the birth of a child and CFRA leave is taken after the baby has arrived. 

California Pregnancy Disability Leave Law – disability leave

Under the PDL, eligible employees are entitled to take up to 4 months of job-protected leave if the employee becomes disabled by pregnancy, childbirth, or related medical conditions, is unable to perform any one or more of the essential functions of her job, or is unable to perform those functions without undue risk to herself, the successful completion of her pregnancy, or to other persons. Cal. Govt. Code § 12945(a); 2 Cal. Code Regs § 11035(f).

Leave under the PDL does not make the employee eligible for leave under the CFRA, and time off due to pregnancy disability therefore does not count against an employee’s 12-week CFRA entitlement, as discussed further below.

California Family Rights Act or Moore-Brown-Roberti Family Rights Act – baby bonding leave

The CFRA closely resembles the FMLA, and the CFRA regulations incorporate by reference the FMLA regulations to the extent they are not inconsistent with the CFRA regulations or other state laws. 2 Cal. Code Regs § 11096. Thus, as with the FMLA, eligible employees are entitled to take up to 12 weeks of job and benefit protected leave during a 12-month period for the birth of a child. Cal. Govt. Code § 12945.2. The CFRA, however, does not permit leave for an employee’s disability caused by pregnancy, childbirth, or related medical conditions. Id. Such leave is covered in California under the PDL as discussed above. Leave that is common to both the FMLA and CFRA runs concurrently. 2 Cal. Code Regs § 11090(b).

Job and Benefit Protection Eligibility Checklists

Family Medical Leave Act of 1993 and California Family Rights Act Checklist

  • Employer criteria: private employers with 50 or more employees. 29 U.S.C. § 2611(4); 29 C.F.R. § 825.104; Cal. Govt. Code § 12945.2; 2 Cal. Code Regs § 11087(d)(1).
  • Employee criteria: (1) employment by employer for at least 12 months; (2) worked for at least 1,250 hours during the 12-month period preceding the leave; (3) worked at a worksite where 50 or more employees are employed. 29 U.S.C. 2611(2); 29 C.F.R. §825.110(a); Cal. Govt. Code § 12945.2; 2 Cal. Code Regs § 11087(e).

Even if neither the FMLA or the CFRA apply to an employee, that employee is eligible for the same benefits or medical leave to which any other disabled employee at that employer is entitled under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) as amended by the Pregnancy Discrimination Act of 1978 (42 U.S.C. § 2000e(k)) and California’s Fair Employment and Housing Act (Cal. Govt. Code § 12940(a)).

California Pregnancy Disability Leave Law Checklist

  • Employer criteria: employers with 5 or more employees. Cal. Govt. Code § 12926(d); 2 Cal. Code Regs § 11035(h).
  • Employee criteria: female employee who becomes disabled by pregnancy, childbirth, or a related medical condition.  Cal. Govt. Code § 12945(a).  There is no required length of service or number of hours worked in the year prior to the commencement of the leave.

Wage Replacement Laws

California provides employees with partial wage replacement under the circumstances outlined below. In addition to state-funded wage replacement, employers may “integrate” or “coordinate” payments to an employee to provide that employee with his or her full wages during the periods when he or she is entitled to the state benefits. This sometimes misunderstood and little known wage replacement option can be a good retention tool for employers. Information the procedure to integrate/coordinate is found here: http://www.edd.ca.gov/disability/FAQ_Integration_Coordination.htm.

No federal laws exist which provide employees with wage replacement in connection specifically with pregnancy or child birth related leave.

California State Disability Insurance (“SDI”)

SDI is a partial wage replacement program funded through employee tax contributions available to any employee who needs time off due to her own nonwork-related injuries, illnesses, or conditions, including pregnancy or related medical conditions that prevent her from performing her regular or customary work. Cal. Un. Ins. Code §§ 984 and 2626(a)-(b). Employees apply for SDI through the California Employment Development Department (“EDD”). Weekly benefits range from $50 to a maximum of $1,129.

For purposes of SDI, an employer is “any employing unit which has . . . one or more employees”; thus, employers of every size must withhold the required taxes and employees of even the smallest of employers are eligible to receive for SDI payments. Cal. Un. Ins. Code § 675.

California Paid Family Leave or Family Temporary Disability Leave (“PFL”) (Cal. Un. Ins. Code §§ 3300-3306)

PFL is also a partial wage replacement program funded through employee tax contributions available to employees who suffer a wage loss when they take time off from work to bond with a new child. Cal. Un. Ins. Code § 3300(g). Employees apply for PFL through the EDD and the benefit amounts mirror those available under SDI. Typically employees receive PFL wages following the use of their SDI benefits. Employees may receive up to 6 weeks of PFL benefits in a 12 month period. Cal. Un. Ins. Code § 3301(d).

Conclusion

Pregnancy and child birth are exciting, life changing, stressful, and heart opening times of life. Education on both the employee and employer side can help ease the transition for all involved into the new phase of the employee’s life. 


-- Abigail Stephenson, Attorney at Blanchard, Krasner & French 


This article is for information purposes only and does not contain or convey legal advice. The information herein should not be relied upon in regard to any particular facts or circumstances without first consulting with a lawyer. This is a modified version of an article by the same author that appeared in Lawyers Club News.