The federal Family and Medical Leave Act (“FMLA”) requires employers to provide unpaid leave to employees who must attend to specific medical and/or family matters. Under the FMLA, employees can take unpaid leave for up to twelve workweeks in a twelve month period. This leave is generally job-protected, which means that an employee can return to the position they held before taking their leave under the Act.

In order to be entitled to FMLA leave, an employee must meet eligibility requirements. These include:

  • The employee must work for an employer that the FMLA applies to. Public agencies covered by the FMLA include federal, state, and local employers. This also includes public schools. Private employers that employ 50 or more employees, for at least 20 workweeks, are covered by the FMLA;
  • The employee who is seeking leave must have worked at least 1,250 hours in the 12 months prior to when their leave begins; and
  • The employee must have worked for their employer for at least 12 months since the employee began employment with the employer.

An employee can take FMLA leave for any of the following reasons:

  • The birth of a child;
  • Adopting a child;
  • Becoming foster parents;
  • To provide caretaker services for a member of the employee’s immediate family. It is important to note that that family member must have a serious health condition. Immediate family members include children, spouses, and parents;
  • To take medical leave when the employee themselves cannot work because of a serious health condition. It is important to note that this condition must render the employee unable to perform essential functions of the employment; and
  • For qualifying emergencies associated with an employee’s child, spouse, or parent on covered active duty, or is called to active duty status in the Reserves, Regular Armed Forces, or National Guard.

The California Pregnancy Disability Leave Law (“PDL”) provides employees with the opportunity to take a leave from work before, during, and/or after a pregnancy. PDL ensures that when an employee takes pregnancy disability leave, they will continue to receive any existing healthcare coverage. They may also resume their original or equal position after they return from leave.

If an employee is qualified for PDL, their employer cannot deny or punish an employee for requesting or taking the leave.

Do Non-Pregnant Employees Qualify For Pregnancy Disability Leave In California If A Family Member Is Pregnant?

As of 2012, California has expanded PDL regulations in order to protect non-pregnant employees. If the employer believes the employee is pregnant, the new law will protect the employee, even if the employee is not actually pregnant. What this means is that a non-pregnant employee may qualify for pregnancy disability leave in California, if it is a family member that is pregnant. Additionally, under these new regulations, employees can take PDL leave on a per-pregnancy basis as opposed to an annual basis.

Employers that cannot return employees to their original positions must notify the employees regarding similar positions. With a few exceptions, employers must provide their employees with at least sixty days notice after the scheduled reinstatement date. Additionally, employees’ health benefits must continue during the duration of their pregnancy leave.

Following a 2013 Supreme Court decision, legal protections such as PDL and the California Family Rights Act (“CFRA”) now apply to same-sex spouses. The CFRA offers protected leave to a non-pregnant spouse or parent. For lesbian spouses specifically, the non-pregnant spouse can take a 12 week leave under CFRA and expand the leave of the pregnant, delivering spouse by an additional 12 weeks.

How Do I Know If My Pregnancy Disability Leave Rights Have Been Violated?

If an employee believes they qualify for PDL in California, they must meet with a physician and submit a physician-supported request for PDL. This must be done at least 30 days before the leave begins. If it is not possible to submit the request within 30 days prior to leave, such as in the instance of a premature birth, the employee must request their leave as soon as possible.

If the employer provides continued health coverage for employees who take non-pregnancy related leave, they are required to continue health coverage for employees who take PDL. Additionally, employers may require employees to use accrued sick leave during any unpaid time on leave.

If you and your employer qualify for PDL, but your employer does any of the following, your rights have been violated under California pregnancy disability leave laws:

  • Your employer refuses to continue your health coverage;
  • Your employer refuses to give a requested written promise of employment protection;
  • Your employer refuses to honor physician recommended accommodations;
  • Your employer requires you to use paid vacation leave during the leave, which is different from requiring you to use accrued sick leave during any unpaid time on leave;
  • Your employer terminates your position at any point during or at the end of PDL;
  • Your employer cuts your wages due to your pregnancy and/or request for leave; and/or
  • Your employer worsens your working conditions due to your pregnancy and/or request for leave.

What Else Should I Know About Taking Leave Under The FMLA In General?

The FMLA does not require leave to be paid; however, the law permits an employee to elect, or to “substitute” accrued paid vacation leave, paid sick or family leave in lieu of using the unpaid FMLA leave. If an employee informs an employer that they are using paid leave for a reason that is covered by the FMLA, the leave is “protected” under the FMLA.

An employee who takes unpaid FMLA leave cannot be fired for taking the leave. On an employee’s return from FMLA leave, the FMLA requires that the employer return the employee to the same job, or one that is equivalent. Failure to do so can allow an employee to sue that employer in court.

It is important to note that the right to job restoration to the same or nearly equivalent position is not unlimited. An example of this would be how if an employer lays people off through a reduction in force, an employee taking FMLA leave can be laid off just as other employees. Additionally, employers can deny job restoration to key employees. A “key employee” is an employee that is paid a salary, and is eligible for FMLA leave.

Additionally, under the FMLA, employers must maintain group health coverage for an employee that is taking FMLA leave. What this means is that if the employer generally covers the costs of the health care premiums, they must pay the premiums for an employee who is on leave. If an employer generally requires an employee to contribute to premiums, the employer can require employees who are on leave to continue to contribute to those premiums in the same amount as they did before taking leave.

Do I Need An Attorney For Pregnancy Disability Leave In California?

If you are employed in California and are experiencing issues associated with taking your pregnancy disability leave, you should contact an experienced and local California discrimination lawyer as soon as possible.

An attorney can help you understand your rights and legal options according to state law, and will also be able to represent you in court, as needed.