How Do Pregnancy and Baby-Bonding Leave Laws Interact in California?

​California's myriad leave laws can make it difficult for employers to understand workers' eligibility for time off—particularly when it comes to pregnancy and baby-bonding leave. Here's what employers in the state should know.

Available Leave

​Using combined leave under several statutes, new mothers in California may be able to take up to seven months of job-protected leave. Depending on employer size and eligibility, the following leave laws may apply to California workers:

• The California Fair Employment and Housing Act's (FEHA's) Pregnancy Disability Leave (PDL) law.
  
• The California Family Rights Act (CFRA).
  
• The federal Family and Medical Leave Act (FMLA).
  
• California's New Parent Leave Act.
  

It can be challenging for HR professionals to understand how these laws work together and how to explain leave eligibility to employees in a way that makes sense, said Michelle Barrett Falconer, an attorney with Littler in San Francisco. She recommends that employers make a chart for each worker who is requesting leave, because the visual display may be helpful.

[SHRM members-only how-to guide: How to Manage Pregnancy-Related Leave in California]

Who Is Covered?

An employer with five or more workers must provide up to four months of PDL when the worker is disabled due to pregnancy, childbirth or a related medical condition.

Except when it comes to pregnancy, CFRA leave and FMLA leave generally run concurrently. For example, they will run together if an employee needs time off to treat his or her own illness or to care for a sick family member. Both statutes apply to employers with 50 or more workers within a 75-mile radius of one another and provide up to 12 weeks of job-protected leave to employees who have worked for their employer for at least a year and for at least 1,250 hours in the past year.

While both the CFRA and the FMLA provide for baby-bonding leave (for mothers and fathers), only the FMLA covers pregnancy disability leave. Therefore, leave under these statutes doesn't run concurrently for pregnancy leave. Instead, PDL and FMLA leave will run concurrently while the mother is disabled by the pregnancy; CFRA leave will kick in when the disability ends and the baby-bonding starts.

Employers may question why workers would need PDL when they have the CFRA to cover baby-bonding and the FMLA to cover pregnancy disability. "PDL came about before we had this notion of family and medical leave," Falconer said. "So it makes sense that the California version of the FMLA carved out pregnancy disability, because we already had a law covering it."

As such, a California employee who is disabled by pregnancy may take up to four months of PDL followed by up to 12 weeks of baby-bonding leave under the CFRA, explained Robin Largent, an attorney with Carothers DiSante & Freudenberger LLP in Sacramento. "Under the FMLA, the total leave time is 12 weeks, whether it be for pregnancy-related disability and/or baby-bonding reasons."

It is important to note that smaller employers in California—those with 20-49 employees—now must offer up to 12 weeks of baby-bonding leave to eligible workers under the New Parent Leave Act, which took effect on Jan. 1. 

State Disability Insurance

​Workers in the state may also be eligible to receive up to six weeks of partial wage replacement through the state paid-family-leave insurance program. Employers and workers alike should understand that the program doesn't afford any job protections, but it allows employees to recover some wages from the state while taking certain leave, said Steve Hernández, an attorney with Barnes & Thornburg in Los Angeles.

"Employers should give employees notice of the availability of paid-family-leave insurance," Largent said. Furthermore, San Francisco employers with 20 or more employees must pay supplemental compensation to workers who are receiving paid-family-leave benefits for parental-leave purposes. The insurance plus the supplemental compensation must cover all of the employee's gross wages for the six-week eligibility period.

Additional Leave

​Employers should avoid having a policy with an absolute cap on the amount of leave employees may take for their own disability, Largent said. While the CFRA, the FMLA and the PDL law all set the maximum lengths of leave available under each statute, employers must keep in mind that they may be legally required to provide additional leave time as a reasonable accommodation under FEHA or the Americans with Disabilities Act.

"The employer should engage in the interactive process with the employee and determine how much additional leave time is needed for the disability and whether the employer can reasonably accommodate that additional leave," she said.

Best Practices

Solid record-keeping practices and regular communication with employees are the keys to managing leave, Hernández said. Employers should record what part of the leave is for the PDL law, the FMLA or the CFRA; when the different leave entitlements are running concurrently; and when they are exhausted.

"Let the employee know when she is using PDL and FMLA and when she is switching over to CFRA," he said. Employers may want to send critical information like this by certified letter with a return receipt requested so that there is a record of the communication.

Falconer cautioned that employers shouldn't automatically switch an employee to CFRA baby-bonding leave when the child is born, but rather when the pregnancy disability ends. Generally, women take PDL for about eight weeks after childbirth—but this varies, and employers will need to find out the specific timing for each employee.

Employers must also clearly communicate how their own policies interact with statutory leave, Hernández said. For example, an employer that offers more-generous time-off benefits or paid time off needs to tell employees if that time runs concurrently with statutory leave.

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