California Pregnancy Disability Leave
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You have the right to take maternity leave and to be reinstated to your same or comparable job after the leave has ended. You have no right to get paid by your employer during the maternity leave unless your employer pays employees for other temporary medical leaves. You can also get paid if you use vacation time or PTO during the leave period, or paid into the state disability insurance fund, or use California’s Paid Family Leave. There is no length of service eligibility requirements (i.e., tenure period) with your employer before leave can be taken for pregnancy.
Employers with five or more employees must provide up to four months of unpaid leave (“Pregnancy Disability Leave” or “PDL for short”) to women with a “pregnancy-related disability”. A “pregnancy-related disability” is a medical or mental condition related to pregnancy which either impairs (1) the woman’s ability to do her job, or (2) makes work unsafe for her or her baby. The conditions which give rise to a right to take leave include, but are not limited to, debilitating severe morning sickness, the need for prenatal or postnatal care or a medical need for bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, lactation conditions, loss or end of pregnancy, and recovery from loss or end of pregnancy.
If a woman has a pregnancy-related disability and works for a large-enough employer, she is entitled to leave if she can’t do a core or important job function, regardless of whether she is a full- or part-time employee. The key is, the pregnancy-related disability must prevent her from doing (or at least safely doing) some important job function. If she can do her job despite the disability, she is not entitled to leave. For example, say that pregnancy imposes a 10 lb lifting restriction on a woman. If she is a warehouse, shipping, inventory, etc. employee, she could take leave—you typically can’t do those or similar jobs if you can’t lift over 10 lbs. On the other hand, if she is a graphic artist, an accountant or accounting clerk, software tech support, or customer service, etc.-- since you can do those jobs without lifting large weights, she would not be eligible for leave.
Expecting female employees who qualify for PDL are eligible for up to four months of leave, paid or unpaid, depending on your employer’s policy for other medical leaves. Although your employer can hire a temporary staff person to fill in during your absence, the company must allow you to return to your same position or a position with similar pay, benefits, work shifts, and hours (see more below).
California’s PDL leave is flexible. You do not have to take it all at once. You may take PDL on an as-needed basis and in small increments of time if necessary (i.e., if recommended by your health care provider). The ability to take the leave in increments can be used to shorten work days, if medically appropriate. For example, if you could take four months of 8-hour work days off entirely, you could could take up to eight months of half-days off, letting you work 4-hour days instead.
Integration with California Family Rights Act (CFRA): You can use PDL in addition to the 12 weeks of leave provided by the California Family Rights Act (CFRA), so you can effectively take up to seven-months of leave, IF your medical needs require it. CFRA leave is more flexible in some ways than PDL, in that you can use it to take care of your spouse or child, or to bond with a child after birth or adoption, in addition to using it for your own pregnancy-related disabilities.
But because PDL is related to the mother’s disability or medical needs, you can’t use PDL in order to be home with a newborn. This can result in very different amounts of leave available to pregnant women, since their medical needs may vary. For example, Jane Doe suffers a medical complication while giving birth that requires four months to recover from. So she gets four months after birth for her own medical needs under PDL, then can take another twelve weeks for her child’s need or to bond with her child under CFRA, for seven months total. On the other hand, Joan Doe has a medical issue in the last month of her pregnancy, but that issue is resolved when she gives birth. She could take the one-month pre-birth for her own pregnancy-related disability under PDL, then could take another three months off under CFRA, for four months total. See our article on California Unpaid Family Leave for more information about CFRA and how it interacts with PDL.
Integration with federal FMLA: California PDL and the FMLA run concurrently. This means that though you are eligible for both, you can’t add the time available under FMLA to the time you can take under PDL (or, for that matter, CFRA). See our article on Family and Medical Leave Act for more information.
Both California and federal law prohibit treating pregnancy worse than or differently from other disabilities. Your employer must therefore treat pregnancy-related disability in the same manner as it treats any other temporary disability. This means that, for good or for ill (see below) any policies that apply to other temporarily disabled workers (e.g., workers recovering from injuries or surgery) must also apply to pregnant women.
There are several limitations on PDL in California law:
(1) Medical certification requirement: An employer may ask you to provide medical substantiation to support the pregnancy-related disability. Your employer does not need to simply accept your word about your pregnancy-related disability. See your HR department for a copy of the medical certification form to give to your health care provider.
(2) Health insurance coverage: Assuming you have elected group health insurance coverage, your employer must continue paying its portion of your health care benefits for all fourth months (see https://www.dfeh.ca.gov/resources/frequently-asked-questions/employment-faqs/pregnancy-disability-leave-faqs/).
(3) Accrual time: in keeping with the employer’s general disability-related policies, an employer may suspend accruing time for seniority, paid time off, sick leave, or vesting in benefits programs during PDL. Here again, if your employer allows accrual for other sick or disability leaves, it must accord you the same right.
(4) Will I be paid? Leave under California PDL is paid if your employer pays employees who are unable to work for other medical reasons. If the employer does not pay any employees who are out of work due to disability-related reasons, it does not need to pay pregnant women—pregnancy must be treated the same as other disabilities, not better. However, you may have the option of using accrued paid leave (i.e., vacation, sick, PTO) during your time off. You can also apply to short-term California disability insurance.
If possible, you must provide your employer with at least 30-days notice before taking PDL This applies to non-emergency situations: you have to provide prior notice. However, medical emergencies do not require this much notice and you cannot be denied leave due to an unforeseen absence. Certification of your disability given to your employer must show date of disability, the time needed off work, and an explanation of why you cannot work. While you need not file a claim with a California agency to obtain PDL, you must request PDL from your employer directly and you may be asked to support your request with medical documentation (i.e., a doctor’s certificate).
Notice requirements do run both ways, however. Employers must inform all employees of their right to take PDL and include this information in company handbooks.
Your employer must guarantee the same or a comparable position on your return from PDL. A comparable position is one with the same (or closely similar) compensation (i.e. pay and benefits), seniority, and authority. But so long as the position is comparable, you cannot demand your exact same position back. For example, say you were an accounting clerk and like that job, but your employer filled that position while you were out and transferred you to HR at the same level and for the same pay; in that case, even if you hate human resources, you are stuck in it.
However, there are circumstances under which your employer does not have to take you back. Your employer can deny you re-employment after leave if your position was legitimately eliminated due to layoffs or location closures. Understandably, if your position was going to be eliminated whether or not you were pregnant or had a pregnancy-related disability, they can let you go. Legally, you could also be terminated for valid, non-pregnancy- and non-leave-related reasons, such as poor performance or insubordination. But doing so can be risky for the employer, unless they have thoroughly documented the issues and can prove them at need; otherwise, without proof, it may appear that the employer is really retaliating against the pregnant employee, and that could lead to substantial liability for the employer.
Under both state and federal anti-disability-related discrimination laws, if you have a pregnancy-related disability, your employer must make “reasonable accommodations” for you. A “reasonable accommodation” is a change in duties or procedure, or the provision of some assistive device or item, which lets you do your job despite your condition, so long as the accommodation is not too disruptive or expensive. Allowing more frequent bathroom or meal breaks if necessary or allowing employees who normally stand to sit are common (and commonly granted) accommodations. The employer may also have to transfer you to a less-strenuous or –hazardous position if one exists in the company and can be done by you—but they don’t have to make up a job they don’t need for you, bump another employee out of his or her job to accommodate you, or move you into a position for which you are not qualified.
In addition, you may also receive State Disability Insurance (SDI) while on PDL. See our article on California State Disability Insurance for more information.
If you are denied PDL or feel that you are being unfairly discriminated against, get in touch with the Work and Family Information Line at 1-800-880-8047. You may also wish to contact the California Division of Labor Standards Enforcement