A few weeks ago I discussed a new California law requiring employers to continue providing benefits to employees on pregnancy leave. Since then, I have received questions on parental rights in California. In response, today’s post will discuss 3 bodies of law that affect California employees’ parental leave rights.
- California’s Pregnancy Disability Leave (PDL)
- California Family Rights Act (CFRA)
- Contractual Rights
California’s Pregnancy Disability Leave (PDL)
- California Government Code section 12945 makes it unlawful for an employer to deny reasonable leave, up to four months, to a female employee who is disabled by pregnancy, childbirth or related medical conditions.
- The leave may be intermittent (e.g., for doctor’s appointments or sporadic episodes of pregnancy related disability) up to a total of four months.
- The employee shall be entitled to utilize any accrued vacation leave during this period of time.
- The employee has a right to reinstatement to the same or substantially similar position. If the employee requests that the guarantee to reinstatement be in writing, the employer must do so. (Cal. Code, Regs., tit. 2, § 7291.9, subd. (a).) However, an employee on PDL does not have a greater right to reinstatement than an employee who did not take PDL.
California Family Rights Act (CFRA)
- California Government Code section 12945.2 makes it unlawful for certain employers to refuse to grant certain employees a request to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.
- “Family care and medical leave” means any of the following:
- Leave for reason of the birth of a child of the employee;
- Employee’s adoption or foster care of a child;
- Serious health condition of a child of the employee;
- Leave to care for a parent or a spouse who has a serious health condition; or
- Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
- To be eligible for leave under CFRA, the requesting employee must have worked at least 1,250 hours for the employer for the previous 12 month period.
- Employers covered by CFRA’s requirements are those with at least 50 employees within 75 miles of the worksite where the employee seeking CFRA leave is employed or be a governmental agency.
- Employees on CFRA leave have a right to reinstatement to same or similar position.
- Employees shall retain employee status during CFRA leave periods and the leave shall not constitute a break in service.
- CFRA and PDL are separate and distinct entitlements. May be taken consecutively. (Cal. Code Regs., tit. 2, § 7291.13, subd. (a).)
Note: The California Domestic Partner Rights and Responsibilities Act (CDPRRA) (Fam C §§297-299.6) extends most of the same rights, responsibilities, and benefits to registered domestic partners as spouses. See Fam C §297.5. As such, registered domestic partners are entitled to leave under the CFRA. Only domestic partners who have registered with the State of California qualify under the CDPRRA.
Private (Contractual) Rights
If an employer has a more generous leave policy for other temporary disabilities the employer must provide the same leave to employees temporarily disabled by pregnancy. (Cal. Code Regs., tit. 2, §7291.7, subd. (b).)
Example: If XYZ Corp. allows its employees six months of unpaid leave for temporary disabilities (e.g., broken leg), then it must offer six weeks to a woman needing PDL.
Example: If ABC, LLC provides four weeks of paid leave for temporary disability, then PDL must be paid, as well.
Tips for Employees:
- Be as explicit as possible about what you are requesting: family care or family medical leave (not necessarily why – privacy rights are not waived).
- Submit requests for leave in writing or confirm in writing.
- Give as much notice as reasonably possible.
Tips for Employers:
- Review these technical statutes and regulations as well as internal policies before responding to an employee’s request for leave and respond to leave requests accordingly.
- Properly classify the type of leave employee is granted and keep track of the amount of leave employee has been granted.
- Remember that you may have a duty to engage in the interactive process and accommodate disabled employees, which may require you to provide an employee with leave in excess of those discussed above.