FAMILY AND MEDICAL LEAVE DUE TO PREGNANCY

Last month, we addressed medical leaves of absence, noting a disparity between the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA) in the area of pregnancy leaves of absence. The Paid Family Leave Insurance (PFL) and the Fair Employment and Housing Act (FEHA) also grant pregnant employees certain rights. Differences in these laws are critical for determining eligibility, length of leave, benefits, and employer rights and obligations. While the CFRA and FMLA apply only to employers with 50 or more employees, PFL applies to all employees covered by State Disability Insurance (SDI) regardless of company size. Where conflicts exist, employers must apply the provision that most favors the employee.

Employee Eligibility

Those employed for 12 months (1,250 hours) before a qualifying company are eligible under FMLA and CFRA:

• FMLA: Periods of incapacity due to pregnancy are covered as a serious health condition.
• CFRA: Pregnancy disability leave is explicitly excluded from the definition of employee's own serious health condition. Pregnancy disability leave is covered by FEHA. Leave is granted to care/bond with child.
• PFL: Employee has contributed to SDI and waited the 7-day period without receiving other benefits.

Length of Leave:

Both FMLA and CFRA provide up to 12 weeks of unpaid leave. Distinctions are as follows:

• FMLA: Continuous leave for pregnancy disability and birth/bonding within 1 year of the birth or placement.
• CFRA: Continuous or intermittent leave for birth/bonding within 1 year of birth or placement. Child must already be born at the time of the request. Employee may have the right to 12 additional weeks of CFRA leave for the care of a child after the pregnancy disability leave. May run concurrently with FMLA leave.
• PFL: Up to 6 weeks of paid leave to bond with a child. Runs concurrently with FMLA and CFRA leave.
• FEHA: Up to 4 months of unpaid leave while the employee is actually disabled by pregnancy or childbirth.

Benefits Affected:

Both FMLA and CFRA protect employee reinstatement, but allow an employer to require the use of vacation.

• FMLA: May require use of sick leave if the employer's sick leave policy provides for it.
• CFRA: May require sick leave use only if leave is for employee's own health or there is mutual assent.
• PFL: No job protection. Employer may require use of 2 weeks of unused vacation prior. Employers may not substitute sick leave for unused vacation time. Employee may not simultaneously receive other benefits. Employer may require that employee take leave under FMLA and/or CFRA simultaneously.

The Employer's Rights and Obligations:

• FMLA: An employer which reasonably doubts an employee's medical certification may require a second opinion. An employer may also require an employee's family member to obtain a second opinion.
• CFRA: An employer may only require an employee obtain a second opinion. In the case of pregnancy disability, an employer must accept certifications containing the requisite detail and cannot require a second opinion.

Should any specific issues arise regarding pregnancy leaves of absence, you should contact an experienced employment law attorney.

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net or www.employmentattorneys.net.

	AREAS OF PRACTICE | ABOUT OUR FIRM | PROFILES
	MEDIATION | CONTACT US | ARTICLES | RESOURCE LINKS | HOME