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 another. 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 See Schlehr & Farr, Next Page 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 See Schlehr & Farr, Next Page 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 concurrently. 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 See Schlehr & Farr, Next Page 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). Conclusion 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 (www.pregnancylawyer.com). 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].