California’s laws regarding pregnancy and medical leaves of absences can be tricky to understand. For starters, have you heard of the FMLA, CFRA, FEHA, PDL, HWHFA, or PFL? Probably not, and even most California lawyers could not begin to tell you the difference between the legal abbreviations. Assuming you knew what the abbreviations meant, do you know which protected leave applies to large employers versus small employers? Or which type of leave allows a new father to take paternity leave?
This article series will discuss each type of protected leave in detail. This article provides an overview of California’s Pregnancy Disability Leave Law (called “PDL” or “PDLL” for short). A separate article discussing California’s Baby Bonding leave may be viewed here.
What is Pregnancy Disability Leave?
Pregnancy Disability Leave is one of several types of “legally protected” maternity and/or pregnancy leaves of absences available to California employees. A leave of absence is “legally protected” if an employer is prohibited from interfering with an employee who exercises her right to take and use the protected leave (i.e. protected from termination).
A pregnancy disability leave lasts up to four months, one month longer than another common type of pregnancy-related leave of absence through the California Family Rights Act (“CFRA”). The employee may use the four months continuously, or in smaller increments of time totaling four months called “intermittent leave”. An employer is not required to continue paying the employee her wage or salary while the employee is on leave. However, the employer must continue the employee’s employer-provided health insurance and must reinstate the employee to her old position and rate-of-pay upon returning from her leave of absence.
Even though a Pregnancy Disability Leave is unpaid by the employer, an employee with a pregnancy disability may qualify simultaneously for a form of public assistance offered by the State of California called Paid Family Leave or “PFL”, a different law entirely from PDL, where the employee is paid a portion of their normal wages for up to ten weeks.
Who Gets to Take Pregnancy Disability Leave?
An employee’s right to take a Pregnancy Disability Leave requires their employer to be a “covered employer” and also requires that the employee is an “eligible female employee” permitted to take the leave. (2 C.C.R. 11035 (g)).
The most unique aspect of California’s Pregnancy Disability Leave law is that most private employers are covered employers required to provide leave if the employee is eligible. An employer is required to provide PDL if they have five or more employees. (2 C.C.R. 11035 (h).) The five employees can be part-time or full-time. If the total number of employees fluctuates during the course of the year prior to the employee’s requested leave, an averaging method is used to calculate the total number of employees. All California governmental entities are covered employers. (2 C.C.R. 11035 (h).)
An employee is an “eligible female employee” entitled to take PDL if they are an employee who is “disabled by pregnancy, childbirth, or a related medical condition”. (Cal. Gov't. Code § 12945). Importantly, there is no length of service requirement for an employee to be eligible for PDL. In contrast, other forms of pregnancy and medical leave required the employee to have been employed for a minimum of one year and to have worked for 1,250 hours in the past twelve months, excluding new employees. Under California’s PDL law, even brand-new employees must be provided with the leave if they are otherwise eligible. Spouses and fathers are not protected under California’s PDL law.
What Types of Medical Conditions Qualify Under PDL?
Being pregnant does not automatically qualify an employee as eligible to take PDL. The employee must be disabled by pregnancy, childbirth, or a related medical condition. Being “disabled” by pregnancy, childbirth, or a related medical condition means that in the opinion of a medical care provider, the employee is unable to perform one or more “essential functions” of their position. (Cal. Gov't. Code § 12945 (a); 2 C.C.R. 11035 (d).) An essential function of the employee’s position is an integral or critical job component, in contrast to a marginal or occasional job requirement.
California provides a non-exhaustive list of example medical conditions that may qualify for PDL; remember that some of these medical conditions arise after the birth of a child when the employee is no longer pregnant: severe morning sickness, prenatal or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia; post-partum depression, actual childbirth or recovery from childbirth, loss or end of pregnancy, and medical complications with lactation or breastfeeding. (2 C.C.R. 11035(d)(f).) Although women experiencing “normal pregnancies” are not eligible for PDL, given that actual child birth is a protected medical condition, all pregnant women who give birth will be eligible at least once during their pregnancy.
To complicate matters, an eligible employee under California’s Pregnancy Disability Leave law may also qualify for other forms of legally protected leave.
What Must an Employee do to Take Pregnancy Disability Leave?
Assuming the employer is a covered employer and that the employee is eligible to take leave, the employee is next required to provide timely verbal- or written-notice sufficient to make the employer aware that the employee needs pregnancy disability leave. (2 C.C.R. 11050). Typically, the notice is provided in the form of a written note from a medical provider (i.e. a doctor’s note). Notice is considered “timely” if provided within 30-days before the leave is to commence. However, if providing less than thirty-days’ notice is not possible, for instance, due to a sudden medical diagnosis, the employee must only provide notice to the employer “as soon as practicable”.
If required by an employer, the employee must provide a medical certification to their employer confirming that they are disabled by pregnancy, stating the accommodations required by the employee, and providing the estimated duration of the leave. (2 C.C.R. 11050). An employer has a very limited ability to pry further into the medical details of an employee’s pregnancy disability or otherwise challenge the medical certification. Id.
What are a Covered Employer’s Obligations Under California’s Pregnancy Disability Leave Law?
Employers covered by California’s PDL have clear but very rigorous obligations with regard to employees who are disabled by pregnancy, employees who request and/or take a Pregnancy Disability Leave, and employees who are returning from a protected Pregnancy Disability Leave.
Employers do not have to continue paying the employee’s salary or wages during the Pregnancy Disability Leave, however, employees may apply accrued paid time-off (“PTO”) towards the absence if they choose to do so. Employers must, however, continue any employer-provided health care coverage for an employee while she is on a Pregnancy Disability Leave.
An employer’s clearest obligation under California’s Pregnancy Disability Leave law is to reinstate the employee to her old position and rate-of-pay upon returning from the leave. In other words, after the employee returns from her four-month leave, the employee must be given her exact job back or a virtually identical position that she held prior to the disability leave in terms of pay, benefits, working conditions, schedule, and status. (2 C.C.R. 11035 (i)(j).) There are very limited exceptions and defenses available to employers who do not reinstate their employees after returning from leave.
Lastly, employers are required to provide a specific form of written notice to their employees regarding the employee’s rights to take Pregnancy Disability Leave. This obligation is triggered when the employer learns that the employee is pregnant or when the employer learns that the employee needs a Pregnancy Disability Leave. (2 C.C.R. 11051).
What Are an Employee’s Legal Rights Under California’s PDL law?
Employers are prohibited from interfering with, or retaliating against, an employee who exercises their rights to take Pregnancy Disability Leave or who attempts to exercise those rights. Unlawful “interference” includes refusing to reinstate an employee at the end of a protected leave or refusing to grant a Pregnancy Disability Leave altogether.
Employees may sue their employers for violating California’s Pregnancy Disability Leave law and may seek monetary damages for lost wages and benefits, emotional or psychological damages (called “general damages”), as well as attorney fees and costs.
Do you have questions about California’s Pregnancy Disability Leave law? Contact the Law Office of Brian Mathias.