California Pregnancy Leave

Brad Nakase, Employment Attorney

When a woman finds out she is pregnant, one of her first thoughts is taking pregnancy disability leave to be with her newborn. Fortunately, California has drafted and created regulations allowing women to take pregnancy disability leave while still keeping her current job position. In fact, pregnancy disability leave is one of the most common leaves requested by employees.

When and how to ask for pregnancy disability leave?

Reasonable notice should be given to an employer including when the leave will be taken and how long the employee plans to be out of the office.[1]

It can be done verbally or in writing.[2] Writing is the best option because it gives employers notice but also acts as evidence if there ever is a problem in the future.

Pregnancy leave must be given freely by an employer if the employee entitled.[3]

An employer can also request medical documentation if it so pleases and the employee must give it; usually a doctor note suffices. However, the employer can demand the request to be made 30 days before the planned leave.[4]

Types of Pregnancy Leave

California provides may options as well as different durations given to employees wanting maternity leave including pregnancy disability leave and baby bonding leave.[5]

By definition, pregnancy disability leave is easier to achieve because it is broadly available in California as long as the employee can prove two things:

  • Employee must be disabled by her pregnancy, childbirth, or a related medical condition and
  • The employer is covered by California’s pregnancy disability leave law (usually occurs in all businesses with more than five employees; government organizations; or employer is person who acts as agent of covered employer)[6]

If  both of these are met, the employee may request and will likely be granted up to four months of maternity leave.[7] An advantage to pregnancy disability leave is that it can be taken in cycles meaning it does not have to be used all at once.[8]

For example, if the mother is experiencing pain and the doctor requires bed rest for a month, that month may be taken and she can then return back to work afterwards. This still leaves her with up to three additional months to take at a later date.

Moreover, it does not matter if the woman is part-time or full-time; this maternity leave is granted as long as the employer is covered by California’s pregnancy disability leave law.[9]

How to determine if one is disabled by pregnancy

Under California law, a woman is not automatically considered disabled just because she is pregnant. In order to obtain this type of leave, a doctor must show the woman cannot perform one or more of her essential functions of her job due to her pregnancy.[10]

A few examples of pregnancy disability include:

  • bed rest (example given above);
  • post-partum depression;
  • hypertension, preeclampsia, and
  • even morning sickness if severe enough.[11]

Some of these events may occur before pregnancy. This type of leave is not exhausted to just post birth but can be used at any time.

After the baby is born, a woman is considered disabled under California law by her pregnancy.[12] Because every woman and every birth is different, the amount of time needed to recover from birth will vary.

Getting your job back after maternity leave

Most women wonder what happens to her position while she is gone – is it given away?
If she takes leave will she have a job when she gets back?

Fortunately, under California law[13], an employee who returns from leave is entitled to her same or comparable position upon returning.[14] However, there is an exception to this expectation. If a company has layoffs, the company closes, or goes bankrupt, the guarantee for a position is hindered.[15]

Do I get paid for maternity leave?

California does not require employees to pay employees during maternity leave. However, paid time off and accrued vacation time may be used and the mother would still receive wages.[16] Further, California requires employers to continue giving medical benefits to employee while on maternity leave.[17]

In order to prevent retaliation or revoking of medical benefits during maternity leave, the mother remains an employee during her leave.[18]

The state of California also has different types of insurance that can be used during maternity leave. These include California’s State Disability Insurance (pay a certain amount weekly if the employee paid at least $300 into the SDI fund five to 18 months before filing for the insurance).[19] The other California option is Paid Family Leave. This states six weeks of family insurance benefits may be paid within any 12-month period.[20]

 Other types of maternity leave

California also allows other types of maternity leave that allow men to take off from work. Family and bonding time leave is an example.[21] This allows an eligible employee, man or woman, to take up to 12 weeks of leave per year, either at once or any time within one year of the child’s birth or adoption. However, this only applies in certain situations:

  • Employer must employ at least 20 people within 75 miles of employee’s worksite;
  • Employee must have worked more than 12 months for employer prior to period of leave taken and
  • In past 12 months, employee must have worked at least 1,250 hours for the employer.[22]

If these requirements are met, California law will likely require the employer to entitle the employee to family leave. Upon returning, he or she must be given the same or comparable position he or she had at the time of taking the leave.[23]

Further, if added training is needed or the employee’s skills are no longer up to the standard of the position, the employer must give a reasonable time for the employee to catch up and learn.[24]

Reasonable accommodation

Reasonable accommodation arises when the employee asks for changes or alterations to his or her work space in order to fulfill work obligations.[25] The term “reasonable” depends on the facts of the case and up to the court to decide.

However, the accommodation cannot impose an undue hardship on the employer.[26] Further, the employer must listen to the accommodation requested by the employee and try to work with he or she to make that accommodation.[27] This accommodation may require specific activities or efforts by the employer including: restructuring tasks; moving office; deadlines; timelines; how the position is handled and tasks are completed.[28] However, that accommodation may not result in risk to the employee or others in the office.[29]

If a violation occurs by employer, what can I do?

Employees have a few options if they have been denied. First, is to resolve the dispute with the employer usually privately or with human resources or the employee may file a suit in court. However, if the employee wants to bring a claim under state law (California’s Department of Fair Employment and Housing), she must do so within one year from the violation.[30] If the employee does so and is approved by the Department, she has one year to file a civil suit in court.[31]

Legal Reference

[1] Gov. Code, § 12945, subd. (a)(1)

[2] California Code of Ordinances Sec. 2.72.100

[3] Cal. Code Regs., tit. 2, § 11042, subd. (c)

[4] Cal. Code Regs., tit. 2, § 11091, subd. (a)(2)

[5] Government Code § 12945

[6] Gov. Code, §§ 12945

[7] California Code of Ordinances Sec. 2.72.100 (I)

[8] Cal. Code Regs., tit. 2, § 11042, subd. (a)

[9] Gov. Code, §§ 12945

[10] Cal. Code of Regs., tit. 2, § 11035, subd. (f)

[11] Cal. Code of Regs., tit. 2, § 11035, subd. (f)

[12] Cal. Code of Regs., tit. 2, § 11035, subd. (f)

[13] Cal. Code Regs § 11043

[14] Cal. Code Regs § 12945.2

[15] Cal. Code Regs § 11043

[16] Cal. Code Regs., tit. 2, § 11044, subd. (b)(2)

[17] Gov. Code, §§ 12945

[18] Cal. Code Regs., tit. 2, § 11044, subd. (e)

[19] Unemp. Ins. Code, § 2655, subd. (e)

[20] Unemp. Ins. Code, § 3301

[21] Cal. Code Regs § 12945.2 (I)

[22] Cal. Code Regs § 12945.2 (c)(2)

[23] Cal. Code Regs § 12945.2

[24] Cal. Code Regs., tit. 2, § 11089, subd. (a)(2)(B)

[25] Gov. Code, § 12940, subd. (a)

[26] Cal. Code of Regs., tit. 2, § 11068, subd. (e).

[27] Cal. Code of Regs., tit. 2, § 11068, subd. (e).

[28] Gov. Code, § 12926, subd. (p)(1).

[29] Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798

[30] Gov. Code, § 12960

[31] Gov. Code, § 12965, subd. (d)(2)