Marica P. from San Francisco asks this week's question:
Q: “I saw your article in the newspaper a few weeks ago. I am really confused on how long I can take maternity leave for. The Leave Service Center at my work is not very informative. I am due Dec. 3 and I have a few questions and concerns. I was under the impression that FMLA equals 12 weeks off and CFRA equals 12 weeks (to be used within a year of child birth) means 24 weeks of time off. How much time can I really take off?”
A: Marica, I am sorry you missed our recent free pregnancy-rights workshop we held several weeks ago. This was covered in the presentation.
Unfortunately, our next presentation won't be until early next year, so I will answer your question here. First, CFRA is the acronym for the California Family Rights Act. FMLA is the acronym for the Family Medical Leave Act. FMLA is a nationwide federal law that provides for a minimum level of leave for qualified workers. CFRA is the California equivalent. Since California has its own leave act, we look to it. In states without their own law, they must adhere to the federal law. You don't get to stack FMLA and CFRA, but you may be able to take CFRA with pregnancy disability leave as noted below.
CFRA (California Government Code 12945.2) requires employers who have 50 or more employees within a 75-mile radius to provide up to 12 weeks of leave for employees who have worked for that employer for at least 12 months prior to requesting the leave and who have worked at least 1,250 hours in that period. The 12-month requirement need not be 12 consecutive months. Intermittent employment may qualify.
Leave under the CFRA may be for the following: A serious health condition of the employee, child, spouse or parent; birth of a child; and bonding leave, placement of a baby with a family as part of an adoption. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice or residential facility or continuing treatment by a health care provider.
Continuing treatment is a period of incapacity of greater than three days involving at least two treatments by a health care practitioner within the 30 days prior to the leave (unless prevented by extenuating circumstances) or at least one treatment within seven days after the day of first incapacitation resulting in a continuing treatment regimen. It is unlawful for an employer to interfere with an employee exercising their leave rights, including discouraging the leave, encouraging delay of the leave, threatening retaliation or job reassignment, harassment or requiring the employee to work in some capacity during the leave.
An employee who takes CFRA is entitled to return to the same or similar position at rates of equal pay and benefits. Refusal to reinstate is a form of discrimination and any retaliation is forbidden. This leave is unpaid (unless the employer has a different policy), but you may use accrued sick and/or vacation time. An employer has to continue providing your health insurance premiums with you being responsible for any contribution you normally make (i.e., if you pay a portion of your insurance, you must continue to do so).
Pregnancy disability leave (California Government Code 12945), provides up to four months of unpaid leave for pregnancy-related disability. This applies to employers with five or more employees, whereas CFRA only applies if there are 50 or more employees. If you are not entitled to CFRA, you can still be entitled to PDL. If the employer meets the requirements for both CFRA and PDL, it must provide both, which can be stacked to maximize your time off on a protected leave of absence.
A woman is disabled by pregnancy if, in the opinion of her health care provider, she is unable because of pregnancy to perform any one or more of the essential functions of her job if to do so would cause undue risk to herself or to her pregnancy. Severe morning sickness or a need to take time off for prenatal or postnatal care, bed rest, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, childbirth, loss or end of pregnancy or recovery from childbirth would be considered disabling conditions.
This list is nonexclusive. An employer must reinstate the returning employee to the same or similar position. Marica, provide this to your employer and hopefully you can get your leave without legal action. If not, then contact the Department of Fair Employment and Housing or a trial lawyer. Both exist to help people obtain their rights when employers won't voluntarily comply with the law.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.