What to Expect When Your Employee Is Expecting: A Refresher on California’s Pregnancy-Related Leave Laws

Posted on: January 26, 2021
In: Labor & Employment

By: Lewis Brisbois' Labor & Employment Team

Given that California is known as one of the most employee-friendly states, it follows that California’s pregnancy and parental leave laws are among the most generous in the nation. While employees in other states must rely on the federal Family and Medical Leave Act (FMLA) for pregnancy-related leave, California has enacted several laws that also provide time off for new and expecting parents. These laws greatly benefit such employees; however, their varying components can lead to substantial confusion for employers. While every situation is different and requires a case-by-case analysis, the following guidance will help navigate the nuances of pregnancy-related leave laws applicable in California.

Family and Medical Leave Act

The FMLA grants eligible employees up to 12 workweeks of unpaid, job-protected leave within a 12-month period. New and expecting parents may take FMLA leave for: (1) the birth of a child, including care for the newborn child within one year of the child’s birth; (2) the adoption or foster care of a child, including care for the newly-placed child within one year of the placement; and (3) a serious health condition, including pregnancy, which makes the employee unable to perform the essential functions of her job. Additionally, eligible spouses who work for the same employer may also take FMLA leave for categories (1) and (2); however, in such a situation, both spouses are limited to a combined total of 12 workweeks of FMLA leave within a 12-month period.

Eligible employees are those who: (1) work for a covered employer; (2) have worked at least 1,250 hours during the 12 months prior to the start of the leave; (3) work at a location with 50 or more employees (or within 75 miles of the location); and (4) have worked for the employer for 12 months, regardless of whether they have done so consecutively. 

California Family Rights Act

Like the FMLA, the California Family Rights Act (CFRA) also grants eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period. Employee-eligibility requirements are the same as those required under the FMLA. However, unlike the FMLA, the CFRA does not permit leave for pregnancy, nor does it consider pregnancy a serious health condition. Instead, new parents can take CFRA leave following the birth of a child for bonding. Moreover, the CFRA – unlike the FMLA – permits an employee to take leave for bonding with the child of a domestic partner. Additionally, spouses who work with the same employer cannot combine their CFRA leave, as is permitted under the FMLA.

There are certain situations in which an employee qualifies for both FMLA and CFRA leave. For example, if an eligible employee who qualifies for both FMLA and CFRA leave has just given birth and wishes to take leave to bond with her newborn, the FMLA and CFRA leaves will run concurrently for a total of 12 weeks. 

New Parent Leave Act

California’s New Parent Leave Act (NPLA), which went into effect on January 1, 2018, expands employees’ entitlement to parental leave to smaller businesses that were not previously subject to the same obligations under the FMLA and CFRA. The NPLA grants eligible employees – both fathers and mothers – up to 12 weeks of unpaid, job-protected leave for the purpose of caring for and bonding with (1) a newborn child within one year of the child’s birth, or (2) a new child placed with the employee through adoption or foster care. 

Similar to the FMLA and CFRA, eligible employees are those who have worked at least 1,250 hours in the 12 months prior to the leave. However, covered employers must only have 20 to 49 employees working within a 75-mile radius. As a result, NPLA leave is not available to employees who are eligible for FMLA and CFRA leave. 

Pregnancy Disability Leave 

Under California’s Fair Employment and Housing Act (FEHA), employers with five or more employees are required to grant leave for “a reasonable period of time,” up to four months, for employees with a pregnancy-related disability. This includes any disability which relates to pregnancy, child birth, or loss of pregnancy. 

Pregnancy Disability Leave (PDL) applies to all private employers that have employed at least five or more full- or part-time employees for each working day in any 20 consecutive weeks in the current or preceding calendar year. California public employers are also covered, regardless of how many individuals they employ. However, religious associations or corporations not organized for private profit are not considered “employers” under the FEHA.

Unlike the FMLA, CFRA, and NPLA, there is no eligibility criteria for PDL; rather, employees are eligible for PDL upon their hire. Employees disabled by pregnancy must inform their employer of the anticipated length and timing of the leave or accommodation needed and, if the leave or accommodation is foreseeable, they must provide at least 30 days’ advance notice. However, this 30-day requirement is excused with a showing of good cause, lack of knowledge, or medical emergency. 

Determining eligibility, requirements, and other aspects of each of California’s pregnancy and parental leave laws can be a complex process. Lewis Brisbois’ employment attorneys regularly counsel employers on such matters. For more information, contact the author of this post or visit our Labor & Employment Practice page to find an attorney in your area.

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