California Protected Leaves of Absence: Pregnancy Disability Leave

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.

Baby Power: The Huge New Employee-Parental Rights Law In California

Are you or will you be a new parent? Do you work for an employer with 20-49 employees? Start the countdown. In less than 90 days California’s brand new, and much more expansive protected parental leave of absence law will come into effect on January 1, 2018. No surprise, this law protects and expands the rights of employees, not employers; this is California, after all.

What does the new law do and how is it different than the old law?

The new law makes an addition to the California Family Rights Act (“CFRA” and pronounced “cee frah”) which allows certain employees to take a legally protected, unpaid 12-week leave of absence from work (called “protected leave”) to bond with a new baby or adopted child. The 12-weeks of leave  may be taken as one uninterrupted block of time, or may be taken in smaller bites of time called “intermittent leave”. The law applies to both moms and dads.

Formerly, CFRA applied to employees who work for employers who have 50 or more employees (this mirrors the federal government's version of a similar law called the Family Medical Leave Act (“FMLA”). Read more about the old law here.  Now, CFRA has expanded by requiring employers with just 20-49 employees to provide the same protected leave of absence to new parents. The same law will now apply to smaller employers and cover three-million additional workers in California.  

What does the employee have to do?

There are essentially three requirements for employees to receive a protected parental leave of absence under CFRA.

First, the employee must have worked for the same employer for at least one year, and worked at least 1,250 hours in the past twelve months. Brand new employees are not covered under the new law, however, employees at or near the one-year mark may sue their employer for anticipatorily interfering with their right to protected leave in the right circumstances.

Second, the protected leave of absence must be for the purpose of bonding within a new child within one year of the child’s birth, adoption, or foster care placement. The new expanded leave law does not protect employees who need time off work to care for their own illness or  the illness of a family member; only employers of 50 or more employees must provide that protection to employees.  

Third, employees must request the parental leave from their employers. Employees should never rely on the employer to offer the leave.

What does the employer have to do?

First and foremost, employers are required to reinstate their employees to the same job or a comparable job when they return from the parental leave. Remember, the power behind the new law, and all of CFRA/ FMLA, is the right to return the same job when the leave of absence is over.

Employers cannot terminate the employee’s medical insurance during the 12 week protected leave of absence. However, if an employee refuses to return to work after the leave is over the employer can recover the amount of the insurance premiums from the employee.

Importantly, the leave of absence is unpaid, as are all other CFRA-FMLA absences. However, employees must be allowed to apply their accrued PTO or sick time to the leave of absence.

What should an employee do and what can the  and employee do or sue for?

In this writer’s experience, large employers already frequently underestimate their rigorous obligations under the CFRA and FMLA. Both laws are complicated and are very demanding on employers. Moreover,  the expanded new law takes effect so quickly and covers so many additional smaller employers that it will catch many employers flat-footed. This will result in a tremendous amount of new litigation in California for violation of the parental leave law.

Notably, employers do not need to intentionally deprive an employee of their right to protected leave to be liable under the law. A simple bureaucratic or administrative mistake or ignorance of the law can expose an employer to very large legal claims.

Employers who fail to reinstate employees after the parental leave, or who interfere with the employee’s right to leave, or who take any adverse or retaliatory action against employees for exercising this new right can get sued by the employee. CFRA retaliation or interference claims include damages for lost income, punitive damages, as well as the plaintiff-employee’s attorney fees.

Employees who sense that their employer is interfering with their right to protected parental leave, or who have been refused reinstatement, should contact a plaintiff’s employment lawyer as soon as possible.

Is your employer of 20 or more employees allowing you to take a twelve-week leave of absence to care for a new child? If “no”, contact the Law Office of Brian Mathias. 

It’s a Boy! Unraveling California’s Pregnancy-in-Employment Laws

California’s laws surrounding pregnancy leave and pregnancy discrimination are tricky for employees, human resources, and lawyers alike. For starters, have you heard of the FMLA, CFRA, FEHA, PDL, or PFL? Probably not, and even most California lawyers could not begin to tell you the difference between the legal abbreviations.

Pregnancy employment laws are complicated with many nuances, lots of pages of detail, overlap and conflict with other laws, and regular legislative updates. However they may be easily understood by viewing them in the big picture.  

First, California’s public policy is to keep pregnant women and new parents in the workforce. California has written a variety of laws and regulations to implement this public policy. The laws are written for the benefit of employees, they are many times burdensome for employers, and when the laws are ambiguous they are generally applied in favor of the employee.

Second, California law has three different types of protections for pregnant women: 1) a general prohibitation against pregnancy discrimination; 2) an allowance for job protection during a leave of absence for pregnancy, childbirth, or baby bonding (called “protected leave”); and 3) wage and income replacement for missed work.

1. Anti-Discrimination/ Wrongful Terminations:

California’s Fair Employment and Housing Act (abbreviated “FEHA” and pronounced “fee ha”) prohibits workplace discrimination or “wrongful termination” on the basis of pregnancy status. This means that an employer of five or more employees cannot fire or demote a pregnant person because of their pregnancy status.  In other words, employers cannot fire an employee because they are pregnant. This includes, in many instances, terminating a pregnant employee because the employer believes the employee would be harming their unborn child by continuing to work.

Similarly, it is a myth that a pregnant employee cannot be subjected to discipline, terminated, written up for poor performance, or otherwise fired while pregnant.  Again, the law prohibits the termination of a pregnant employee when the termination is “substantially motivated” because of the pregnancy status.  A termination or other adverse employment action not related to the pregnancy may be lawful.

Click here to read an example of what may qualify as a wrongful termination based on pregnancy status. 

2. Job Protection and Protected Leave of Absenses

California’s public policy is implemented by allowing for a period of protected time off work, called “protected leave” or a "leave of absence" so that pregnant women may address medical complications during their pregnancy and so new parents may bond with their newborn children. These laws are addressed by the California Family Rights Act (abbreviated “CFRA” and pronounced “cee frah”) and its federal counterpart (the Family & Medical Leave Act or “FMLA). The power behind CFRA and FMLA is that they require employers to hold open the employee’s job for at least 12 weeks and then “reinstate” the employee to their old position when they return to work. 

Protected leave only applies to large employers who have fifty or more employees. Similarly, the employee must have worked for their employer for one year or more in order to qualify for leave. New employees are generally not given protected leave.

 “Baby bonding” is a part of the CFRA and it serves the public policy of allowing new parents (both moms and dads) to take time off work to care for their newborn children. A CFRA/FMLA eligible employee may take up to 12 weeks of unpaid leave for baby bonding. Similarly, the 12 weeks of leave may be taken as one uninterrupted block of time, or may take it in smaller bites of time, called “intermittent leave”.

California law prohibits employers from retaliating against employees who ask for or take protected leave, and also prohibit employers from interfering with an employee while they take protected leave.

A pregnant mother may qualify for an additional four months of protected leave called“Pregnancy Disability Leave” (or “PDL”) in the event they suffer medical complications during their pregnancy, such as the need for bed rest, severe morning sickness, prenatal care, and other complications arising from pregnancy. Not all pregnant women will qualify for this leave, only those that suffer a medical complication or disability during pregnancy.

This leave is in addition to the leave allowed by CFRA or the FMLA; therefore, an employee that qualifies for PDL and CFRA/FMLA may take seven months of protected leave. Unlike the CFRA or FMLA, employers of five or more employees must allow for PDL and there is no minimum one-year work requirement for the employee.

3. Wage and Income Replacement

Lastly, while California's laws prohibiting discrimination against pregnant women and allowing for protected leave are generally strong, California laws that provide for wage replacement for new moms and dads are generally weak.

While CFRA prohibits employers from terminating health insurance of an employee on protected leave, there is no requirement that the employer keep paying them their regular wages and salary. In other words, a new parent that takes 12 weeks of baby bonding leave will not be paid any actual money.

California’s Employment Development Department or “EDD” (in this writer’s opinion, the most unruly, slow, and horrible bureaucracy in California) does provide some wage replacement to employees who take time off work to bond with a new child, called “Paid Family Leave” or “PFL”.

The problem is that PFL does not pay very much. It only pays four weeks pre-pregnancy if you are considered “disabled” by your pregnancy, and only six or eight weeks after delivery to recover from childbirth or bond with a newchild. Moreover, the employee is only paid about 50% of their normal wages, and in any event no more than $1,173.00 per week.

 Are you a Santa Cruz or Monterey County employee facing challenges at work because of your pregnancy? Contact the Law Office of Brian Mathias

What is a "wrongful" termination?

The term, “wrongful termination” is the most commonly misunderstood legal term in employment law after “harassment.”  (See the article "What is illegal harassment in employment?") The legal definition of “wrongful termination” is much narrower than most think.

To an employee, a termination may be “wrongful” in the employer’s reasoning for the termination did not make sense, if it was based on a mistake by the employer, favoritism, misplaced blame, or if the termination was no fault of the employee’s.

As an illustration, Sally the Salesperson, works for the national retailer K-Smart. One day on the sales floor, Sally’s coworker, Arnie, places incorrect bar codes on numerous pieces of merchandise. As a result of Arnie’s blunder, dozens of items sell for less than full retail value. Unfortunately, K-Smart management incorrectly blames Sally, and not Arnie, for the lost revenue. Sally is then fired.  

Sally may describe her termination as a wrongful termination. After all, it was Arnie’s mistake, not Sally’s. Morally, Sally is correct in labeling her termination as “wrongful”. However, Sally’s termination doesn’t actually meet the legal definition of a wrongful termination.

Legally, a wrongful termination is a termination that violates the law or a government policy. The most common wrongful terminations are those based on discrimination or harassment because of a "protected characteristic". This includes terminations based on age (if over 40), ancestry, color, disability or “health” discrimination, gender, gender identity, military and veteran status, marital status, national origin, race, religion, and sexual orientation. Other policies prohibit retaliation against whistle blowers--employees who have reported illegal acts. There are dozens of government policies that may constitute a wrongful termination.

However, there is probably no policy that legally prohibits K-Smart from incorrectly firing Sally for the negligence and mistake of a co-worker. Therefore, Sally was not “wrongfully terminated” in the legal sense of the term.

As an illustration of a wrongful termination that would meet the legal definition, let’s slightly twist the illustration with Sally the Salesperson described above. Imagine that Sally the Salesperson is five-months pregnant. Even though Sally is pregnant, she is still performing the same duties and working the same number of hours at K-Smart as she did pre-pregnancy. However, upon discovery of the incorrect bar codes, Sally’s supervisor, Johnny, tells K-Smart Human Resources, “It was probably Sally’s mistake. Sally is pregnant and has baby brain. She can’t think straight and shouldn’t be working anyways.” Sally is then fired from K-Smart.

Under these facts Sally has been wrongfully terminated in the legal sense of the term. Johnny’s statements about Sally’s performance are direct evidence that Sally’s termination was motivated by her pregnancy; a legally protected characteristic. K-Smart has violated California’s Fair Employment and Housing Act’s prohibitions against pregnancy discrimination in employment. Under these facts, Sally does have a case of wrongful termination of employment.

Do you think you were wrongfully terminated? Do you know someone who was? If so, visit or call Brian Mathias Law for a phone consultation. Ready to stand up for your rights?