California law provides various leaves and accommodations to pregnant employees, and to employees who have recently had babies and are breastfeeding or expressing milk. The requirements of each law and interactions with other state and federal laws can feel like a confusing puzzle that may leave employers scratching their heads. This summary is aimed at providing some clarity to employers regarding rights that are afforded to pregnant employees and employees who recently gave birth, so that employers may avoid common pitfalls.
Leaves of Absence
Family and Medical Leave
Employers with five or more employees anywhere in the United States must grant eligible California employees family and medical leaves of absence in accordance with the state law known as the California Family Rights Act (CFRA). Employees who work for employers with 50 or more employees at a worksite, or within 75 miles of the worksite, will also be eligible for leave under the federal Family and Medical Leave Act (FMLA).
Both FMLA and CFRA allow eligible employees to take leaves for serious health conditions. Childbirth or complications relating to childbirth or pregnancy would qualify under FMLA as a serious health condition. In contrast, an employee's own disability due to pregnancy, childbirth, or related medical conditions is not a serious health condition under CFRA. However, employees are allowed up to 12 weeks of baby bonding time, which can be taken within 12 months of the birth of a child, adoption of a child, or placement of a foster child with the employee.
Pregnancy Disability Leave
Employers with five or more employees must provide pregnancy-related disability leave (PDL) to eligible employees who request it. PDL is available to employees who are temporarily unable to perform their usual and customary duties because of pregnancy, childbirth, or a related medical condition. Eligible employees are granted this unpaid leave for the actual duration of the disability, up to a maximum of four months per pregnancy. Employers may require certification by an employee's healthcare provider confirming that the employee is not able to work because of the pregnancy-related disability.
Time off needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, and recovery from childbirth is covered by PDL.
An employee who plans to take PDL must provide her employer with at least 30 days' advance notice of the date on which it is anticipated that the leave will commence, the estimated duration of the leave, and the date on which the employee expects to be able to return to work. When an emergency occurs that does not allow the employee to provide advance notice of the need for PDL, the employee must notify her employer of the situation immediately. Employees must also submit a certification from their healthcare provider of their pregnancy-related disability or the medical advisability of a transfer or accommodation.
PDL Interaction with Family and Medical Leave
A California employee who is disabled by pregnancy, childbirth, or a related medical condition is entitled to take PDL, even if she is not eligible for family and medical leave. Although PDL counts as time used for FMLA purposes and runs concurrently with FMLA leave, it does not count as time used under CFRA. Therefore, a California employee who has taken PDL and who is eligible for CFRA has the right to take an additional 12 workweeks of unpaid leave under CFRA after the birth of a child, following the end of the PDL.
Wage Replacement Benefits
California State Disability Insurance
California State Disability Insurance (SDI) provides short-term partial wage replacement benefits to eligible employees who suffer a loss of wages because they are unable to work because of pregnancy or childbirth. SDI is funded through employee payroll deductions. It is the employee's responsibility to apply for SDI benefits, but employers are required to provide employees with paperwork that explains the employee's potential rights and eligibility for such benefits. All decisions regarding eligibility are made by the California Employment Development Department.
Paid Family Leave
California Paid Family Leave (PFL) provides eligible employees with up to eight weeks of partial wage-replacement benefits if they take time off work to bond with a minor child within one year of the child's birth or placement of the child in connection with foster care or adoption. PFL is also funded through employee payroll deductions and is not a leave of absence.
For foreseeable SDI- or PFL-covered events, employees must notify their employers of their intention to apply for the wage replacement benefit. Employees who are receiving SDI or PFL benefits do not always have a guaranteed right to return to their jobs, unless otherwise required by law.
Breaks for Employees to Express Breastmilk
California law requires employers to provide a reasonable amount of break time to accommodate an employee who wants to express breastmilk in the workplace for the employee's infant child. Unless it would present an undue hardship, California law requires employers to provide employees who choose to express milk in the workplace with a private lactation space that is shielded from view and free from intrusion by co-workers and/or the public. The lactation space must not be a bathroom, and it must be in close proximity to the employee's work area.
A lactation space must be safe, clean, and free of toxic or hazardous materials. It must contain a surface for seating and a surface to place a breast pump and personal items, have access to electricity, and have access to a sink with running water and a refrigerator (or other cooling device) in close proximity to the employee's work area. A lactation space may include the place where the employee normally works or other multipurpose room if it otherwise meets the requirements outlined above.
Where possible, the break time may run concurrently with breaks the employer already provides to the employee.
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As the types of leave, wage replacement benefits, and other accommodations available to employees can be very nuanced, we encourage employers to contact one of Venable's California Labor & Employment attorneys, who can provide case-specific guidance and/or answer any questions.