Document 11186

April 2012 Issue
Sarah B. Schlehr
Sarah F. Farr
The intersection of California’s laws
during pregnancy and after delivery
To maximize pregnancy disability leave you must understand the details of each employee’s
situation and how the applicable laws overlap, intersect, and deviate from one another
Three laws provide protected leave
to women in California who are pregnant
or have recently given birth. They
include California’s Pregnancy Disability
Leave Law (PDLL), Government Code
section 12945; the California Family
Rights Act (CFRA), section 12945.2; and
the Federal Family and Medical Leave
Act (FMLA), U.S. Code, title 29, section
2601, et seq.
These laws need to be understood
both independently and in relation to
each other. It is impossible to answer
employees’ questions about protected
leave with a “one size fits all” answer.
Questions about how much leave is available, when it can be taken, and what
reinstatement rights will apply can only
be answered on an individual basis after
obtaining more details from the employee. Answers typically depend on the size
of the employer, length of employment,
number of hours worked, and the type of
leave required (disability or bonding).
To maximize an employee’s amount
of protected leave, it is essential to
understand the details of each employee’s situation and how the applicable laws
overlap, intersect, and deviate from one
California’s Pregnancy Disability
Leave Law
California’s Pregnancy Disability
Leave Law (PDLL) applies to the largest
number of employees, provides the most
job protection, is usually taken before a
bonding leave, and is necessary in almost
every pregnancy. Therefore, it should be
considered first.
PDLL provides employees with up to
four months of pregnancy disability leave
(PDL) for the reasonable period of time a
woman is disabled by pregnancy, childbirth, or a related medical condition. (§
12945(b)(2).) California’s PDLL applies
to all employers who have at least five
employees. (Cal. Code Regs., tit. 2, §
7291.7(h).) Employees are protected by
the PDLL from their very first day of
employment. There is no length of service requirement, and part-time employees can take PDL. (Cal. Code Regs., tit.
2, §§ 7291.7(a)(1), 7291.7(c).)
The PDLL does not automatically
entitle an employee to four months of
protected leave. The employee must be
disabled during the leave. (See Cal. Code
Regs., tit. 2, § 7291.7(g).) However, even
women with generally healthy pregnancies will require some time off for disability. Pre-natal doctor visits are protected
by the PDLL. In addition, providing six
weeks of disability is standard following a
normal, vaginal delivery. Eight weeks of
disability is standard following a cesarean
section. With few exceptions, employers
must return women to their same job
position after they take a PDL.
Because the PDLL is so all-encompassing, most women in California will
be able to take protected leave for the
time necessary to deliver a child and
then return to their same job.
Concerns arise when an employee is
disabled for more than four months.
While the FMLA and CFRA should be
considered when four months of PDL is
exhausted, they don’t always apply.
Fortunately, the PDLL also contemplates
this situation.
In addition to providing for leaves of
absence, the PDLL provides that employers must reasonably accommodate pregnancy-related disabilities. (§12945(b)(1).)
While there is no published California
case law regarding whether providing
leave beyond four months is a reasonable
accommodation in a pregnancy related
situation, the answer is that it should be.
Employers often quote the statutory
language of section 12945 (b)(2) that
employers cannot “refuse to allow a
female employee affected by pregnancy,
childbirth, or a related medical condition… . to take a leave on account of
pregnancy for a reasonable period of
time not to exceed four months” to support
their position that the amount of PDL is
strictly limited to four months. While the
words “not to exceed” certainly seem to
limit a pregnant employee’s right to
leave, reading the statute in its entirety
will dispel this faulty belief.
Section 12945 (b)(1) states that
employers cannot “refuse to allow a
female employee affected by pregnancy,
childbirth, or a related medical condition….To receive the same benefits or
privileges of employment granted by that
employer to other persons not so affected who are similar in their ability or
inability to work, including to take disability or sick leave or any other accrued
leave that is made available by the
employer to temporarily disabled
employees.” In other words “pregnancy,
childbirth, and related medical conditions are treated as any other temporary
disability.” (§ 12945(b)(1).) Since it is well
established that taking an extended leave
of absence may be a reasonable accommodation for a non-pregnancy-related
disability, the four months of leave guaranteed by the PDLL should be considered a floor, not a ceiling.
The California Code of Regulations,
which is required reading for anyone
looking at California’s leave-of-absence
laws, also supports the interpretation that
four months of leave is a floor and not a
ceiling. California Code of Regulations,
title 2, section 7291.7(a) specifies that “All
employers must provide a leave of up to
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By Sarah Schlehr and Sarah Farr — continued from Previous Page
four months, as needed, for the period(s)
of time a woman is actually disabled by
pregnancy even if an employer has a policy or practice which provides less than
four months of leave for other similarly
situated temporarily disabled employees.”
In other words, four months is a minimum. California Code of Regulations,
title 2, section 7291.7(b) goes on to state
that “if an employer has a more generous
leave policy for other temporary disabilities…the employer must provide such
leave to employees temporarily disabled
by pregnancy.” In other words, some
employers may have to provide more
than four months of leave to a woman
disabled by pregnancy, childbirth, or a
related medical condition.
There are some distinctions in an
employee’s reinstatement rights depending on whether the leave is taken pursuant to the PDLL, is provided as a reasonable accommodation, or is taken
pursuant to FMLA or CFRA.
Typically, the reinstatement rights of
employees who are on a pregnancy disability leave of four months or less are
the most protective. With limited exceptions, employees protected by the PDLL
must be guaranteed reinstatement to the
same position. (Cal. Code Regs., tit. 2, §
7291.9(a).) This is different from the
requirement that an employee be
returned to a comparable or equivalent
position – as is specified by both the
CFRA and the FMLA. (Cal. Code Regs.,
tit. 2, § 7291.9(e).)
When an employee is not reinstated
to her same position after taking leave
under California’s PDLL, the employer
has the burden of proving by a preponderance of the evidence “that the
employee would not otherwise have been
employed in her same position at the
time reinstatement is requested for legitimate business reasons unrelated to the
employee taking a pregnancy disability
leave…, ” or that leaving the job unfilled
or utilizing a temporary employee would
“substantially undermine the employer’s
ability to operate the business safely and
efficiently.” (Cal. Code Regs., tit. 2, §
7291.9(c)(1).) Note that the statute specifies that the employer carries this burden
of proof. And, even when an employer
can meet this burden, they may be obligated to reinstate the employee to a comparable position after a PDL.
When a woman’s pregnancy disability leave exceeds four months, her leave is
not governed by the same reinstatement
rights. Rather, California Code of
Regulations, title 2, section 7291.9(d)
specifically addresses a woman’s right to
reinstatement when her pregnancy disability leave exceeds four months.
Women who require a disability leave
longer than four months for pregnancy,
childbirth and related medical conditions
are governed by the same reinstatement
rights as other temporarily disabled
employees. (Ibid.)
Because employers may rely on the
undue hardship defense in a reasonable
accommodation case, they may also use
this defense if they fail to reinstate a
woman who takes longer than four
months of leave for her pregnancy-related
disability. This defense is not available
for leaves protected by the PDLL that are
under four months in duration.
In addition to providing for leaves of
absence, the PDLL provides that employers may not “refuse to provide reasonable
accommodation for an employee for conditions related to pregnancy, childbirth,
or related medical conditions, if she so
requests, with the advice of her health
care provider.” (§ 12945(c)(1).) This
means that some employees may be able
to avoid lengthy periods of disability
leave by requesting accommodations that
make continuing to work possible, even
with medical complications during their
pregnancy. Particularly for those women
who wish to work as long as possible
during their pregnancy, reasonable
accommodations should be considered
before a leave of absence. Some employers will attempt to force pregnant
employees to take a leave of absence
before one is medically necessary.
However, forcing a woman to take leave
when she can be accommodated is also a
violation of law and should be resisted.
Though potential accommodations
are limitless, some common restrictions
and accommodations affecting pregnant
employees include: no heavy lifting, no
climbing ladders, providing a stool or
April 2012 Issue
chair (in jobs that normally require long
periods of standing), permitting snacking
between mealtimes (especially necessary
when there is gestational diabetes),
adjusting work hours (to accommodate
morning sickness), and providing a foot
stool (to alleviate swelling).
The PDLL also contemplates the
need to transfer to a less strenuous position for the duration of a pregnancy.
The California Family Rights Act
After determining whether and
when the PDLL applies, one should next
determine whether and when there may
be a protected leave under the California
Family Rights Act (CFRA). The CFRA
applies in far more limited circumstances
than the PDLL. Though the CFRA typically provides leave for an employee’s
own serious health condition, this is not
true when the serious health condition is
related to pregnancy, childbirth, or a
related medical condition. When
California adopted the PDLL, CFRA was
amended to exclude these conditions.
Therefore, in circumstances relating to
pregnancy, the CFRA can only be used
for bonding leave.
In addition to only allowing for
bonding leave, the CFRA is available to
far fewer women than the PDLL. The
CFRA only applies when an employer
employs at least 50 employees within a
75-mile radius of the employee seeking
to take leave. The employee seeking to
take CFRA leave also has to meet certain
eligibility requirements. The employee
must have worked for the employer for at
least 12 months and must have worked at
least 1250 hours for the employer in the
12 months preceding her CFRA leave. (§
12945.2(a).) It is important to note that
when a CFRA leave follows a PDL, the
1250 hour eligibility requirement gets
counted before the PDL began. (Cal.
Code Regs., tit. 2, § 7297.0(e)(2).) In
other words, the weeks or months when
the employee was taking PDL and was
not working any hours is excluded when
determining whether a woman worked
1250 hours in the last 12 months. This is
important because women who require
four months of disability leave might not
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By Sarah Schlehr and Sarah Farr — continued from Previous Page
otherwise have enough work hours to
entitle them to bonding leave under the
CFRA after the birth of their child.
As mentioned above, the CFRA
should be considered if a woman continues to be disabled after exhausting her
PDL. Although CFRA specifically
excludes pregnancy-related disabilities,
there is no requirement that a pregnant
employee no longer be disabled before
taking CFRA leave. (§ 12945.2(c)(3)(C).)
This means that a woman who qualifies
for CFRA and has used all of her PDL,
but continues to be disabled after she
gives birth, may immediately begin her
bonding leave.
Though a woman can begin to use
her CFRA leave for bonding as soon as
she gives birth, she will not want to if
she still has PDL available. Because a
woman’s reinstatement rights under the
PDLL are more protective, she will want
to remain protected by the PDLL as long
as possible. In addition, to maximize the
amount of leave time available, a woman
should use her PDL first and preserve
her CFRA leave until PDL is exhausted.
PDL and CFRA leave do not run
The Code of Regulations also allows
for one circumstance when CFRA may be
used while a woman is still pregnant. If a
woman is disabled for longer than four
months because of pregnancy and has
exhausted her four months of PDL, her
employer may agree to permit her to use
her CFRA leave prior to delivery. (Cal.
Code Regs. tit. 2, § 7297.6(c)(1).) If an
employer does designate this leave as
CFRA leave, it will shorten the amount of
CFRA leave that is available for bonding
immediately after the child is born.
(Practice Tip: Bonding leave can be taken
anytime within one year of the child’s
birth. So, if some CFRA leave was utilized before the child’s birth, a mother
may be able to utilize her next year’s
CFRA leave for additional bonding just
before her child’s first birthday.)
CFRA leave provides for reinstatement to only “the same or a comparable
position” upon the employee’s return
from leave. (§ 12945.2(a); italics added.)
This means that the employee must be
returned to a position with the same or
similar duties and pay, located at the
same or a similar geographic location as
the position held prior to her leave.
(There is an exception for certain highly
compensated employees; see §
12945.2(r).) When an employee takes
PDL followed by a CFRA leave, her right
to job reinstatement is controlled by
CFRA. (Cal. Code Regs., tit. 2, §§
7291.9(e), 7297.2(a), 7297.2(c).)
The Federal Family and Medical
Leave Act
Though the Federal Family and
Medical Leave Act (FMLA) provides up
to 12 weeks of protected leave for serious
health conditions relating to pregnancy
and also for bonding leave, it rarely
extends the leave time available to a
pregnant employee in California. As a
practical matter, FMLA can almost always
be ignored in attempting to maximize
leave in a pregnancy-related case in
California. This is because in most cases,
FMLA only applies when CFRA applies,
and FMLA leave runs concurrently with
both PDL and CFRA leaves.
An employee who takes PDL and is
also covered by FMLA will utilize FMLA
for her own serious health condition
while she is utilizing her PDL. If she has
FMLA remaining after her disability
ends, her remaining FMLA leave will
continue to run concurrently with her
CFRA leave. Because her CFRA did not
begin until her PDL ended, she will likely
have more CFRA time remaining than
she has FMLA. The primary exception is
federal employees, who are only protected by the FMLA.
Attorneys will often choose to plead
only PDLL and CRFA causes of action
though FMLA could also be plead.
Avoiding FMLA claims may allow an
employee to remain in state court. If an
employer interferes with an employee’s
FMLA leave, they have almost certainly
interfered with an employee’s PDL
and/or CFRA leaves. This is particularly
true because the PDL provides greater
reinstatement rights than the FMLA, and
the CFRA provides greater rights to
intermittent leave than the FMLA.
As usual, there are always exceptions
to the general rule. There are a several
April 2012 Issue
situations when FMLA should be utilized
and/or plead. First, FMLA applies to
employees of the federal government.
(29 C.F.R. § 825.104(a).) Second, the
FMLA has a longer statute of limitations
than the PDLL and the CFRA. Plaintiffs
who allege violations of the PDLL or the
CFRA must exhaust their administrative
remedies by filing a complaint with the
California Department of Fair
Employment and Housing or the Equal
Employment Opportunity Commission
within one year of the violation. (§
12960.) If the DFEH issues the employee
a right-to-sue letter, she has one year
from the date of the right-to-sue letter to
file her lawsuit in court. (§ 12965.) In
contrast, plaintiffs claiming violations of
the FMLA have two years to file in court
(three years for a “willful” violation) and
do not have to file with an administrative
agency. (29 C.F.R. § 825.400(b).)
The remedies under the FMLA are
also different. The FMLA does not provide for emotional distress or punitive
damages, which are permitted by both
the PDLL and the CFRA. However, the
FMLA does provide liquidated damages
that double the back-pay award. (U.S.
Code, tit. 29, § 2617(a)(1).)
Therefore, alleging an FMLA violation should be considered when there are
substantial lost wages. (Practice Tip: The
advantage of liquidated damages for
back pay must be balanced with the
potential disadvantage of removal to
Federal Court when FMLA violations are
alleged. And, when pleading an FMLA
violation, one should also plead violations of the PDLL and/or CFRA.)
Pay during a protected leave
In addition to maximizing leave,
most employees are concerned about
whether they will receive any income during their leave of absence. The PDLL,
CFRA, and FMLA only protect an
employee’s job; they do not entitle an
employee to pay during the leave unless
an employer provides paid leave to other
temporarily disabled employees. While
employees can choose to use accrued
paid sick or vacation leave, and employers may require employees to use accrued
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By Sarah Schlehr and Sarah Farr — continued from Previous Page
sick leave, this rarely provides income for
the duration of the leave.
When an employer does not provide paid leave, employees may be
eligible for government-sponsored benefits. Employees who are on leave for a
disability may apply for and receive
state disability insurance (SDI). SDI is a
partial wage-replacement benefit provided through the Employment
Development Department (EDD). The
amount received is approximately 55
percent of the weekly wages the
employee earned in the quarter with
the highest earnings in the 12 months
prior to her disability. There is a cap
for high-wage earners.
California also provides employees
with Paid Family Leave (PFL) for up to
six weeks. PFL is also a wage-replacement benefit provided through the EDD
and can be received during bonding
leave. An employee’s weekly benefit
amount under PFL is the same as her
weekly benefit amount under SDI.
It is essential to note that neither
SDI nor PFL provide an employee with
protected leave from work. This confuses
many employees who contact the EDD
and are told that they can receive PFL.
These employees must be advised that
though the state might provide them
with partial wage reimbursement for time
off to bond, their employer may also lawfully fire them if they are not protected
by CFRA or FMLA.
An employee who takes PDL or
CFRA leave retains employee status
during her leave. These leaves do not
constitute a “break in service” for purposes of seniority or under any employee benefit plan. (Cal. Code Regs., tit. 2,
§ 7291.11(d).) When the employee
returns to work, her benefits must be
resumed in the same manner and at
the same levels as when she started her
PDL or CFRA leave. (Cal. Code Regs.,
tit. 2, § 7291.11(d); § 12945.2(g).) In
comparison, an employee taking FMLA
leave is not entitled to accrue seniority
or entitlement to employment benefits
during her leave. (U.S. Code, tit. 29,
§2614(a)(3).) However, taking FMLA
leave cannot result in the loss of any
employment benefits accrued as of the
date when the employee began her
leave. (U.S. Code, tit. 29, § 2614(a)(2).)
Practice applications and examples
• Example one:
Mary works 30 hours per week for
ABC Company. ABC employs 60 people
at Mary’s job site. Mary gets pregnant
just two months after she is hired. She is
put on bed rest for the last three months
of her pregnancy and also requires six
weeks of disability after delivery.
Is her job protected? Does her
employer have to reinstate her? Can
Mary take bonding leave?
Mary’s job is protected by the PDLL
for the first four months of her disability.
However, Mary will be disabled for two
additional weeks. Though she will have
given birth, Mary will not be protected by
FMLA or CFRA for those two weeks
because she will not have worked for the
company for 12 months. However, an
additional two weeks of leave is likely a
reasonable accommodation for Mary’s
disability. Unless ABC Company can
show it would be an undue hardship,
they should accommodate Mary’s need
for additional leave. In addition, Mary
will eventually be able to take bonding
leave. Though she cannot begin her
bonding leave immediately after her
delivery, she will be able to take 12 weeks
of bonding leave after her one-year
anniversary of employment at the company until her child turns one-year old.
• Example 2:
Justine has worked for XYZ
Company for 10 years. XYZ has hundreds of employees. Justine gets pregnant and is placed on bedrest for the last
four months of her pregnancy. Justine
then has a cesarean section and requires
eight weeks of disability post-delivery.
Is Justine’s job protected?
Yes. Justine can utilize PDL for her
four months of bedrest. Even though she
remains disabled after delivery, she can
utilize CFRA leave to bond with her child
for a total of 12 weeks. She can either use
the entire 12 weeks immediately following delivery or she can use eight weeks
immediately after delivery (until her doctor certifies her to return to work) and
utilize the remaining four weeks to bond
April 2012 Issue
with her baby anytime within the first
year of her child’s life.
• Example 3:
Lisa just started a new part-time job.
Lisa knew she was pregnant when she
took the job but didn’t want to tell anyone until she was hired. Just two weeks
after starting her new position, she experiences some spotting and her doctor
takes her off work for two weeks.
Is her job protected?
Yes. Even though Lisa is a part-time
employee, she is protected by California’s
PDLL. She can take two weeks off work
for her pregnancy related disability even
though she has only been employed for
two weeks. Assuming Lisa has a normal
pregnancy after she returns to work, she
will likely be disabled for six weeks after
her delivery. Her job will also be protected by the PDLL during this time.
Depending on how many hours Lisa
works per week, she may be entitled to
some bonding leave after her one-year
anniversary at the company. To qualify,
she will need to have worked at least
1250 hours within the last year (approximately 25hrs/wk).
California law provides many protections for women who are pregnant or
new mothers. To maximize an employee’s entitlement to leave, it is essential to
understand all of California’s leave laws
and how they interact.
Sarah B. Schlehr is the founder of
The Schlehr Law Firm, P.C., in Studio City
( Ms. Schlehr concentrates on representing employees in pregnancy discrimination and interference with
leave claims. She also handles other employment related matters on behalf of employees.
Ms. Schlehr graduated from Harvard Law
School in 2001 and is admitted to the State
Bars of CA and NY. She can be reached at
[email protected].
Sarah F. Farr is an employment attorney
in Los Angeles. Ms. Farr graduated from
UCLA School of Law and is admitted to
practice in California. She can be reached
at [email protected].