This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.
#3 – Denying Pregnant Women Their Full Leave Time
Far too many employers demand that women return to work prematurely from their pregnancy/maternity leaves because they do not understand the interplay between the Pregnancy Disability Leave Law (“PDLL”), the Family and Medical Leave Act (“FMLA”), and the California Family Rights Act (“CFRA”). This is often the case when companies rely on human resources professionals located out of state who are not familiar with California law.
While the FMLA and CFRA generally overlap in their coverage, pregnancy is one situation where they do not. The FMLA covers leaves related to pregnancy and childbirth, while CFRA excludes pregnancy and childbirth-related medical conditions from its definition of “serious health condition.” (See Cal. Code Regs., tit. 2, § 11093.) Pregnancy disability leaves are instead protected under California law through the PDLL, which provides for up to four months of job-protected pregnancy disability leave for women disabled by pregnancy, childbirth, or a related medical condition. (Cal. Gov’t Code § 12945, subd. (a)(1).) PDLL’s protections apply to all women who work in California for employers with five or more employees; there are no eligibility requirements. (Cal. Code Regs., tit. 2, § 11037.)
Thus, in California, pregnancy disability leave under the PDLL runs concurrently with FMLA leave, but CFRA runs consecutively with it, so that an employee can get an additional 12 weeks of baby-bonding leave after their pregnancy disability leave ends. What this means is that a California employee who is covered by PDL, CFRA, and FMLA can get nearly seven months of leave (technically, four months and twelve workweeks) as she first exhausts her pregnancy disability leave for her own pregnancy- and childbirth-related conditions, and then takes the next twelve weeks as CFRA time to bond with her baby.
In addition, women who continue to be disabled by pregnancy or childbirth-related conditions even after the expiration of pregnancy disability and CFRA leave may also be entitled to leave as a reasonable accommodation. Sanchez v. Swissport, Inc. (2013) 213 Cal. App. 4th 1331, 1339 [holding that, under FEHA, “a woman disabled by pregnancy is entitled to the protections afforded any other disabled employee—a reasonable accommodation that does not impose an undue hardship on her employer. As the caselaw makes clear, disability leave may in some circumstances exceed four months.”]; Cal. Code Regs., tit. 2, § 11093, subd. (c)(1) [confirming that FEHA’s obligations to provide reasonable accommodations apply to women who continue to be disabled at the expiration of their four months of pregnancy disability leave].)
Some employers completely disregard PDLL rights, erroneously telling women that they are entitled to just twelve weeks of leave before they must return to work. Others fail to understand that the twelve weeks of CFRA leave are tacked on at the end of the PDLL, and they draw a line at four months. Yet others see the PDLL and CFRA leave periods as a hard stop, failing to consider leave as a reasonable accommodation when it is warranted. All of these are serious mistakes, and may cause women to lose their jobs or force them to return to work prematurely.
* * *
To read about the next way that employers deny employees their leave rights, click here: #4 – Failing To Provide Employees Information About Their Leave Rights.
This series was adapted from Ramit Mizrahi’s article in The Advocate Magazine, “Ten Ways That Employers Deny Employees Their Medical Leave Rights (June 2017).
Image © Sindlera | Dreamstime