CA Pregnancy Leave

California Pregnancy Leave

Pregnancy Disability Leave or “PDL” is usually the main go to for pregnant women seeking a maternity leave of absence. It provides powerful safeguards for working mothers, which is why many employers try to stay hush about it. It also offers devastating punishments for companies that violate the law by failing to provide necessary notice, unreasonably delay/deny leave,
or retaliate against their employees for taking it.

How Long is Maternity Leave?

An employer must allow an eligible female employee that is disabled by pregnancy, childbirth, or a related medical condition to take a medical leave of absence for a “reasonable period of time” not to exceed four months. (Govt C §12945(a); 2 Cal Code Regs §11042(a)).
The rule must be followed even if Your employer has a leave policy that is less generous for other similarly situated temporarily disabled employees.
The four months of leave entitlement for PDL is per pregnancy, not per year. (2 Cal Code Regs §11042(a)(1)). Which means (at least in theory) that an eligible employee would be able to take PDL twice in one year (although very rare). Therefore, PDL is a much more generous deal compared to FMLA which provides only one 12 week leave in any 12-month period.
In practice, an employee may end up entitled to less than four months of actual leave since entitlement is determined by the number of days or hours the employee would regularly work within the four calendar months .

Eligibility Requirements (For CA-PDL)

Not all female employees are eligible for PDL; certain requirement must be met for leave to be available.
The employer must “regularly employ” 5 or more full or part-time employees. (Govt C §12926(d); 2 Cal Code Regs §11035(h)).
Only female employees who are disabled by pregnancy, childbirth, or a related medical condition are entitled to PDL. (Govt C §12945(a)). Transgender individuals that are disabled by pregnancy are also eligible.
Another nice benefit about pregnancy disability leave is that unlike FMLA/CFRA, there is no required length of time or minimum hours worked before an employee is eligible.
The employee must be disabled by pregnancy, childbirth, or a related medical condition.

What Qualifies as a Disability?

Disability because of an employee’s inability to perform work: A healthcare provider must find that a female employee is (1) unable to perform one or more of the essential functions of her job, or (2) is unable to perform those functions without undue risk to herself, or to the successful completion of her pregnancy, or to other persons (i.e. female employee operating dangerous machinery in a factory). (2 Cal Code Regs §11035(f)).

Disability because of an employee’s health needs: An employee is considered disabled by pregnancy if her healthcare provider is of the opinion that she is suffering from “severe morning sickness,” or “any medically recognized physical or mental condition related to pregnancy, childbirth, or recovery from pregnancy or childbirth,” or if the employee needs to take time off for any of the following reasons: (2 Cal Code Regs §11035(f)):
Prenatal or postnatal care;
Bed rest;
Pre-eclampsia;
Childbirth;
Postpartum Depression;
Loss or end of pregnancy; or
Recovery from childbirth

Timely Notice to The Employer

It is the responsibility of every employee to provide timely oral or written notice such that the employer can be made aware that the employee needs to take pregnancy disability leave. This includes (when practicable) providing the employer with the estimated duration and timing of the leave. (2 Cal Code Regs §11050(a)(1)).
When the need for the leave is foreseeable, then an employee must give at least thirty days’ notice before the commencement of the leave. The employee must also coordinate with the employer and make a reasonable effort to schedule planned appointments and medical treatments so that disruptions to the employer’s business operations are minimized.
But when the advance thirty days’ notice is not practicable (i.e., when there is a medical emergency), notice must be given to the employer “as soon as practicable.” (2 Cal Code Regs §11050(a)(3)). The employer may not deny the leave in this scenario just on the basis that there wasn’t adequate notice.
If you fail to provide the timely notice when your need for leave is “foreseeable,” then your employer may delay your request for a transfer or reasonable accommodation until thirty days after you provide your employer with the notice. No delay is ever permitted, however, if it would endanger your health or pregnancy, or the health of your co-workers. ((2 Cal Code Regs §11050(a)(6)).

Warning: Provide the notice in writing by either email or certified mail.
Make sure that there is confirmation of their receipt, that way they cannot later deny that you did not provide them the notice.

Employer Response
Once notice is received the employer must respond “as soon as practicable” but in no event longer than ten calendar days after the receipt of the request. Furthermore, the employer must try to respond before the leave is set to begin. If the approval is given after the leave commences by the employee, it is deemed retroactive to the first day of leave. (2 Cal Code Regs §11050(a)(5)).

Your Provided Medical Certification

The employer may require written medical certification from a healthcare provider as a condition of granting leave. However, if the employer does require medical certification, it must request it when the employee gives notice of her need for the leave or within two business days after.
If the need for the leave is unforeseeable, then the employer must request the medical certification within two days after the leave begins. If the employer failed to ask for certification, it could nevertheless request it at a later date if there is a reason to question the appropriateness of the leave or the duration.

The employer must alert the employee of the following (2 Cal Code Regs §11050(b)(1)): The requirement that the employee provide medical certification; The deadline for delivering it; What is considered sufficient certification; The consequences if certification is not provided.
An employer required medical certification form must also be provided to the employee for the health care provider to fill out. If the employee is already out on leave because it was unforeseeable, notice of the requirement of medical certification can be delivered orally, after which the employer must send the employee the required certification form by mail, electronic mail, or fax (2 Cal Code Regs §11050(b)(1)).
To be deemed valid the certification must state at least the following: a statement that the employee needs to take disability leave because disabled by pregnancy, childbirth or related medical condition; the date the disability began; the estimated duration of the leave.
The employer may not ask for additional information and must accept it as sufficient. However, when the leave period requested by the health care provider expires, the employer may request re-certification if extra time is asked for. (2 Cal Code Regs §11050(b)(8).)

How Much Time do You have to Produce Certification?

If the need for the leave was foreseeable and the employee provided the required thirty-day notice, then the medical certification must be submitted before the leave begins.
If the need was unforeseeable, the employee must provide the certification within the deadline requested by the employer (must be at least 15 days from the date of the request), unless doing so would be unpractical under the particular circumstances despite the employee’s diligent, good faith efforts. (2 Cal Code Regs §11050(c)(2)).
If the certification is inadequate or otherwise incomplete, the employer must notify the employee and provide her with a reasonable opportunity to fix any defects. (2 Cal Code Regs §11050(c)(4)).

Which Healthcare Providers can Certify?

The California Code of Regulations provides that only certain health care providers are qualified to determine if an individual is disabled for purposes of PDL. Therefore, you can’t just see a doctor trained in Chinese medicine. You will see that the standard is broad. Here is the list of the healthcare providers that you can get certification from (2 Cal Code Regs §11035(n)):
An osteopathic or medical doctor, physician, or surgeon, licensed in California, or in another state or country, who directly treats, or supervises the treatment of the employee’s pregnancy, childbirth, or a related medical condition;
A California licensed (or another state or country) marriage and family therapist or acupuncturist;
Any other persons who can meet the Federal Family and Medical Leave Act definition of “others capable of providing health care services.” This includes nurse midwives, licensed midwives, nurse practitioners, clinical social workers, chiropractors, clinical psychologists, physician assistants; who “directly treat or supervise the treatment of the employee’s pregnancy, childbirth, or a related medical condition”; or
A health care provider from whom an employer or a group health plan’s benefits manager will accept the medical certification of the existence of a health condition to substantiate a claim for benefits.

Your employer must provide you notice of your leave rights! In California, an employer must give its workers reasonable advanced notice of their right to Pregnancy Disability Leave. At a minimum, notice must contain information about (2 Cal Code Regs §11049(b)):
Your right as an employee to request a reasonable accommodation, transfer, or pregnancy disability leave;
Your obligation to provide adequate notice in advance of your need for reasonable accommodation,
transfer, or pregnancy disability leave;
The requirement (at the option of the employer) that you provide medical certification.

The notice must be: (1) posted in conspicuous places on the premises, (2) provided to you in writing “as soon as practicable” after you tell your employer that you are pregnant and even sooner if you ask about pregnancy disability leave, transfer, or an accommodation, and (3) provided in the employee handbook (if it has one). (2 Cal Code Regs §11049(d)(3))

Incremental Pregnancy Disability Leave

PDL allows for intermittent or reduced schedule leave. An example of intermittent leave would be taking time off for a regularly scheduled or as needed doctor’s appointment due to morning sickness or some other complication. (2 Cal Code Regs §11042(a)(2)(B)).
An employer must account for intermittent leave using increments that are no longer than the shortest period of time their payroll system uses to account for other leaves. This amount of time cannot be any longer than one hour. (2 Cal Code Regs §11042(a)(2)(B)).
If a medical provider certifies the need for intermittent or reduced-schedule leave, then the employer has the option to temporarily transfer the employee to an alternative position that better accommodates her.
The employee must have equivalent pay and benefits but must be qualified for the position. (2 Cal Code Regs §11041(c)). Once the employee’s medical provider certifies that there is no further need for leave, the employer must reinstate the employee to her same position or one that is comparable. (2 Cal Code Regs §11041(d)).

Payment-Health Insurance-Reinstatement

Payment
Leave taken under the PDLL is unpaid. Female employees may be entitled to receive state disability insurance (called “SDI” or paid family leave “PFL”).

Group Health Insurance
An employer must continue to pay for group health insurance for employees that are on pregnancy disability leave for up to four months over a twelve-month period per pregnancy. The payments must begin on the first day of the leave, at the same amount, and under the same conditions as before the leave. (2 Cal Code Regs §11044(c)(1)). The employee may at her discretion elect to maintain and pay for the coverage beyond the four months. Your employer cannot double dip, meaning your employer may be obligated to pay for four months of health insurance coverage under PDLL, and then another 12 weeks under the CFRA.

Right to Reinstatement
PDLL provides female employees returning from pregnancy disability the right to return to the same or comparable position at their job. Under 2 Cal Code Regs §11043(a), you may request a guarantee in writing confirming that you will be reinstated to the same or comparable position. Refusal by your employer to honor the guarantee is a violation of the law. Once PDL expires eligible female employees get an additional twelve weeks of leave for baby bonding time under the CFRA. Once this happens, the reinstatement rights of the employee are governed by the CFRA not PDLL (2 Cal Code Regs §11043(e)).

Use of PTO or PTO Vacation
An employer cannot force a pregnant female worker to use accrued vacation time or paid time off during pregnancy leave. (2 Cal Code Regs §11044(b)(2)).

Use of Accrued Sick Leave
An employer can require that an employee use accrued paid sick leave during pregnancy disability leave. Even if the employer doesn’t require this, it may be a good idea for an employee to opt to use her accrued paid sick leave since PDL is unpaid. 2 Cal Code Regs §11044(b)(1).

Recovery of Insurance premiums
An employer can recover the insurance premiums paid on behalf of an employee on PDL (2 Cal Code Regs §11044(c)(3) if the employee fails to return from the PDL and the failure to return is because of a reason other than one referenced below:

The employee is on CFRA leave unless she later decides not to return to work after the CFRA leave;
The continuation, recurrence, or onset of a health condition that entitles the employee to PDL, unless the employee chooses not to return to work following the leave;
Non-pregnancy-related medical conditions that require further leave, unless the employee chooses not to return to work following the leave; or
Any other circumstance beyond the employee’s control (i.e., the employer failed to reinstate the employee correctly, or a baby was born with a serious health condition).

Sutter Disability Management
PO Box 160128, Sacramento, CA 95816
Main Phone 855-781-0855 Fax Phone 855-781-0860
[email protected]