California has arguably the best maternity and related laws in the US. While most employees in other states rely on federal law (FMLA), California has enacted several laws offering additional rights and protections. Before highlighting those laws, it’s important to define maternity leave.
Definition of maternity leave
Maternity leave can be defined as absence/time off from work granted to an expectant/new mother before/after they give birth. The term tends to be used interchangeably today to refer to paternity leave (maternity leave for new fathers). The term also extends to leave taken after adoption or a foster care placement and not necessarily after the birth of a biological child.
Laws governing maternity leave in California
California has several laws that touch on maternity leave directly and indirectly. These laws are better than those applicable in most States. They include:
- The NPLA (New Parent Leave Act)
- The CFRA (California Family Rights Act)
- Pregnancy Disability Law
- California Paid Disability & Family Leave
1. New Parent Leave Act
The NPLA offers certain employees the right to go on leave after the birth, adoption, or fostering of a child. The NLPA became law in 2018. To qualify for the leave, you must be a new father or mother. The act allows leave to biological parents as well as those who adopt or foster a child.
The NPLA doesn’t apply to all employers. Employers must meet certain requirements to be subjected to the law. NLPA applies to employers who have 20 or more employees. However, there is an exception. The law can apply regardless of the no. of employees for state and political/civil subdivision of state and cities.
To qualify for New Parent Leave in California, you must:
- Be an employee of a covered employer
- Have worked for your covered employer for a year or more
- Have worked for 1,250 hours or more for the past year before requesting leave
- Be working in a worksite with 20 or more employees within a radius of 75 miles
Important: Employees covered under CFRA and FMLA don’t qualify for new parent leave.
What are employees entitled to under new parent leave act?
If you meet the eligibility requirements of the NPLA, you are entitled to:
- Up to 3 months parental leave
- Full health/medical plan coverage while on leave
- Returning back to work on the same position or a comparable one.
Will I be paid when I take a new parent leave?
Employees aren’t entitled to payment. However, they can utilize other paid time off that has been earned, such as vacation pay or sick time while on new parent leave.
2. CFRA (California Family Rights Act)
The FEHA (Fair Employment & Housing Act) contains medical leave as well as family care provisions for employees in California. The leave provisions are referred to as the CFRA (California Family Rights Act).
The CFRA applies to California employers who:
- Have 50 employees or more (full-time or part-time)
Important: Employers must practice full disclosure. They must offer their employees information on CFRA provisions. Such information should be readily available/accessible in a conspicuous location, such as where employees gather. CFRA provisions should also be included in employee handbooks if such handbooks are available.
To be granted CFRA leave, you must:
- Have worked for over a year for your employer
- Have worked 1,250 hours or more for your employer in the past year before requesting for leave
- Give a notice (30-day notice or as required by your employer). If you have an emergency, notify your employer as soon as possible. Notice can be verbal or written. However, a written notice is better for obvious reasons.
The notice should contain information such as timing and anticipated leave duration as well as written communication from your doctor or health care provider that your child, you, or your spouse has a serious condition related to pregnancy, childbirth, or fostering warranting you to go for leave.
What are employees entitled to under the CFRA?
- Full-time employees are entitled to up to 3 months of leave in a year
- Part-time employees are entitled to leave on a proportional basis
- Entitlement to CFRA leave as well as any other leave entitlement applicable under PDL
- Right to unpaid bonding leave with a biological, foster or adopted child
- Right to unpaid leave to cater for child or spouse with a severe health condition
Will I be paid when I take a CFRA leave?
Your employer isn’t obligated to pay you when you take a CFRA leave. However, your employer can require you to use any accrued paid leave besides sick time. This may apply to scenarios where leave is taken for non-maternity purposes i.e. for an employee’s own health purposes.
You may also be eligible for six weeks paid leave under Family Temporary Disability Insurance, a program by California’s EDD (Employment Development Department). The program offers unemployment disability compensation to employees who take leave to bond with new minors or a seriously ill member of the family.
Important information about CFRA leave
If you take CFRA leave because you have adopted a child or have a newborn, you should complete your leave within a year.
3. Pregnancy Disability Law
This California maternity leave law applies when an employee is “disabled” by pregnancy. You can take up to 16 weeks/4 months leave (pregnancy disability leave) in addition to the 12 weeks CFRA leave if you are “disabled” by pregnancy.
Pregnancy disability leave applies to:
- Covered employers only
- Employers with 5 or more employees
To qualify for pregnancy disability leave in California, you must be:
- Working for a covered employer with 5 or more employees
- Working for a government/state entity or agent of a covered employee
- Disabled by pregnancy, childbirth, or a related health condition. In pregnancy disability leave regulations in California, being disabled by pregnancy means – You can’t do one or more critical job duties because you are pregnant, have a related medical condition, or because you have given birth. Your disability must be confirmed by a health professional before you qualify for pregnancy disability leave.
Disabilities warranting pregnancy disability leave in California include, but aren’t limited to, miscarriage, post-partum depression, preeclampsia, diabetes, and doctor-ordered bed rest.
What are employees entitled to under pregnancy disability law in California?
You should be entitled to:
- PDL if you are disabled by pregnancy
- Necessary accommodations to your work environment for you to be able to discharge your duties effectively while pregnant or after childbirth. Your employer should give you “lighter” duties, modify your work environment by providing working aids such as comfortable furniture. Your employer should also allow longer/more frequent breaks, among other accommodations deemed necessary/important to expectant and new mothers who happen to be employees.
- Your job when you resume work.
Will I be paid during pregnancy disability leave?
Pregnancy disability leave tends to be unpaid leave. However, employees are entitled to pay from different avenues depending on their circumstances. For instance, you can qualify for temporary disability pay if such pay is applicable. Other compensation that may be applicable include accrued leave, vacation leave, sick days, among other paid time off that may be used during a pregnancy disability leave.
Who doesn’t qualify for PDL in California?
Employees of some religious nonprofit associations and corporations aren’t eligible for pregnancy disability leave since such organizations don’t “count” as employers on pregnancy disability law matters.
4. California Paid Disability & Family Leave
Maternity leave in California is also covered under the State’s SDI (Short-term disability insurance) program for employees. The SDI program is funded by employees through payroll deductions. Benefits are received when one is unable to work because of a variety of disabilities, including pregnancy. California’s EDD also offers paid family leave to employees who need to care for seriously ailing family members. The leave is also applicable for bonding with a newborn.
Employer eligibility for SDI in California
Most employers are legally obligated to participate in the State’s SDI program.
You are eligible for SDI if:
- You can’t work because of a disability including pregnancy
- If you earn $300 or more where short-term disability insurance taxes were withheld (during the 1-year base period ending before a complete calendar quarter, just before a claim is filed)
Filing for SDI
To collect SDI in California, you need to:
- File a claim with California’s EDD within 7 weeks of being disabled by pregnancy, childbirth, or a related condition. If you don’t meet this timeline, you can lose your benefits.
- Provide a medical certificate as proof of disability. The certificate must be signed by an authorized individual (medical practitioner if you are filing because of pregnancy, childbirth, or related conditions).
How much will I be paid as SDI?
SDI offers benefits twice a month if you are eligible. The amount ranges from 60 to 70% of your salary during your highest-paid calendar quarter (of the base period). This varies based on factors like your income. SDI benefits aren’t taxable. As a result, the benefits amount to your take-home pay. It’s also worth noting that any earning received while you are receiving SDI benefits are deducted from your benefits.
Important: California doesn’t offer long-term disability insurance. If pregnancy, childbirth, or related health condition/s disable you for more than one year, you should apply for a long-term disability policy, if your employer provides one or social security disability.
Paid Family Leave
California employees can also get benefits for leave taken to bond with a newborn or care for a sick family member. The eligibility requirements for PFL are the same as those for receiving SDI. Notable distinctions include the program’s partial wage replacement (up to 6 weeks) for parents who take bonding leave.
Can I get back to work after taking SDI or PFL?
Most employees are eligible for paid family leave and SDI regardless of the size of their employer. However, if an employee is working for an employer with 19 employees or less, they aren’t entitled to a job-protected leave i.e., an employer isn’t obligated by law to hold a job for an employee till they get back. They can fire you and replace you!
Is maternity leave in California paid?
As discussed above, employers aren’t obligated to pay employees on maternity or related leave. However, there are circumstances where employees are entitled to paid maternity leave. These circumstances include;
- Medical benefits
- State disability insurance
- Paid family leave
- Accrued Paid Time Off
- Temporary disability pay
1. Medical benefits
Your employer is obligated to maintain your medical benefits during maternity leave. The benefits should be at a similar contribution rate during your leave. If you have group medical coverage, your employer must continue paying the same premiums they were paying while you were working. California labor laws have made it illegal for employers to deny employees maternity-related benefits or impose new requirements. Your medical benefits remain intact while you are on maternity leave, and those benefits can’t be denied to get you to return from maternity leave prematurely.
2. State disability insurance
You are entitled to SDI if you are disabled by pregnancy or childbirth. The SDI should run during the period of disability. As mentioned above, you are supposed to receive a portion of your normal wage while you are disabled by pregnancy and childbirth. The benefit ranges from 60 to 70% of your typical wage. However, at least $300 must be contributed to the SDI fund in your base eligibility period. The typical SDI benefit is $50 to $1,252 a week in 2019, according to the EDD, but may vary depending on your earnings.
SDI eligibility extends to individuals who are unable to perform important work duties for 8 or more days. You can also qualify if you are working or actively looking for work when disability begins. As mentioned above, you also need to have medical proof of disability from your doctor or a certified medical practitioner. To get SDI benefits, you should submit a DE 2501 claim form 7 days or more after experiencing your first disability case. The claim form shouldn’t be more than 49 days late (from the day you start experiencing disability). Otherwise, you can lose SDI benefits. Most importantly, your immigration status or citizenship doesn’t affect eligibility.
3. Paid Family Leave
If you are eligible for paid family leave in California, you will receive partial pay (for up to 6 weeks) during your leave period taken to bond with a newborn, newly adopted or foster child. Paid family leave is applicable within the first year of a child’s arrival. According to the EDD, you can get up to $1,252 weekly.
4. Accrued paid time off
You have the right to use any accrued sick pay, vacation pay, among other paid time off during maternity leave. In some cases, your employer can compel you to use the paid time off. However, there are exceptions. For instance, if you take pregnancy disability leave only, your employer can only compel you to use your accrued sick leave. Other accrued paid leave, like vacation time, can only be used at an employee’s discretion during PDL. Workplace policies can also dictate the accrued paid leave that is due. It’s therefore advisable to check with your employer.
5. Temporary disability pay
Laws relating to maternity leave California don’t require employers to pay employees during PDL. However, employers can volunteer to pay other temporary disability leave. However, if an employer usually pays their employees temporary disability benefits for conditions that aren’t related to pregnancy, they should also pay for some/all their employee’s maternity leave.
Requesting for maternity leave in California
If you wish to take maternity leave, you must provide your employer with a notice. The notice should include:
- When you anticipate taking the leave
- Expected leave duration
- Facts supporting your need for leave
The notice should be timely, giving your employer adequate time to make any necessary changes. Ideally, a maternity leave notice should be provided 30 days in advance. However, if the need for maternity leave is triggered by an emergency, you should give a notice when possible. You shouldn’t be denied maternity leave just because you have given a late notice.
The notice should be formal, written, and copied for record-keeping purposes. The notice should also be accompanied by medical documentation showing your need for the leave. It’s also worth noting that employers have the right to question the notice. They can ask questions that you must respond to accordingly.
FAQs about maternity leave California
1. How long is maternity leave in California?
The length of maternity leave will depend on several factors ranging from the type of leave you are eligible for to your right to extended leave based on your condition or that of your child.
2. Can I take maternity leave all at once?
It depends on the type of leave in question. For instance, PDL is taken as the need arises, which can be hours or days at a time, sometimes months. CFRA also works the same. However, typical maternity leave after birth can be taken all at once.
3. Can I be fired for going for maternity leave?
No. The law prohibits employers from firing employees for taking maternity leave. If you are fired for requesting or taking maternity leave, you are a victim of pregnancy discrimination, an offense forbidden by the Pregnancy Discrimination Act.
Your employer is supposed to guarantee you the same job or a comparable one when you get back from leave. If you are given another job/position, it should offer the same pay, promotion opportunities, among other perks, similar to those you were getting before or better.
However, there are exceptions. As mentioned above, employees eligible for SDI and paid family leave but working for an employer with 19 employees or less don’t qualify for a job-protected leave. An employee can also be terminated if their employer intended to do so for other reasons that are not related to an employee’s pregnancy, childbirth, or related conditions.
4. I have been denied maternity leave. What do I do?
California labor laws prohibit discrimination against women in workplaces because of pregnancy. The law applies to employers who employ 5 or more workers. If you are denied reasonable accommodation to allow you to continue working or denied leave, yet you have a pregnancy or childbirth-related condition, your employer is guilty of pregnancy discrimination.
To prove pregnancy discrimination, you must show that:
- Your employer is subject to pregnancy discrimination laws applicable to California
- Your employer took negative employment actions against you such as denying you maternity leave
- There exists a link between your pregnancy and your employer’s negative action
- You suffered harm because of pregnancy discrimination
Which forms of pregnancy discrimination are prohibited in California?
You have the right to maternity leave and any pay/compensation applicable. You shouldn’t be treated differently because you are (pregnant, gave birth recently, or have a related condition) with respect to compensation, working conditions, job assignments, and terms. Pregnancy discrimination is unlawful in almost all stages of employment, from hiring and promotions to training opportunities, determining employee benefits, and permitting leave time. It’s also illegal for an employer to deny you reasonable accommodations if you are “disabled” by pregnancy.
Taking action against your employer
If your employer violates your right to maternity leave or other applicable leave, you should take action immediately. In some cases, an informal dispute resolution process can correct past wrongs. If your employer denies you maternity leave or provisions that are granted under law innocently, you can give them a chance to identify and correct such violations. If they don’t take appropriate action, you can initiate an administrative claim seeking damages or file a lawsuit.
Do I need a lawyer to take action against my employer?
You can file a claim against your employer for violating your rights to maternity leave or other related leave alone. However, it’s always good to involve a lawyer. As seen above, laws on maternity leave and pregnancy discrimination in California are complex. An attorney will be helpful in assessing a claim, helping you gather evidence, applying evidence to the law in a compelling manner, representing you in court, and negotiating for damages on your behalf.
You can avoid many strategic pitfalls by seeking legal advice or representation. Furthermore, you should expect your employer to contest your claims, especially if you take them to court. You’ll need legal advice/representation to navigate court proceedings and emerge victorious.
Launching a claim, charge or suing your employer
If your attempt to solve a pregnancy discrimination claim internally through an informal dispute resolution mechanism fails, you can sue your employer. Before you do so, you must begin by filing a complaint with the DFEH (Department of Fair Employment & Housing). You can’t sue your employer without going through the DFEH complaints process.
The complaint process is detailed on the DFEH’s website. The most important consideration is the existence of strict deadlines when launching claims on maternity leave violations. For instance, you have a year to file. If you don’t want to go through the DFEH, you can ask for a right-to-sue after which you have a year to sue your employer in civil court. You can also complain via the EEOC. Like the DFEH, the EEOC also has its own guidelines on filing charges related to pregnancy discrimination.
Given the complexity of workplace discrimination cases, you should find a workplace discrimination lawyer to guide you through the process of launching a claim, charge, or suing your employer. Although you can launch your own claims or charges via the EEOC or DFEH, it’s not advisable to do so alone.
According to EEOC statistics on pregnancy discrimination, most cases are dismissed for “no reasonable clause” and “administrative closures” reasons, which can be avoided by having an attorney from the onset.
Should I be worried about my employer retaliating?
Your employer is supposed to act lawfully in all cases, even when they are sued or a claim or charge is filed against them. If they act negatively in reaction to efforts by their employees to seek justice or fight for their rights, such actions can be considered retaliatory.
California workplace discrimination laws prohibit retaliation. If your employer demotes you, reassigns you, fires you, or take other negative discriminatory actions because you are seeking for maternity leave or related leave and rights (such as the right to reasonable accommodation), you can file a claim, charge or sue them. You have the right to complain, testify, or assist proceedings on pregnancy discrimination claims against your employer without fear.
Maternity leave California cases
Many employers in California have failed to adhere to maternity and related laws. Here are some recent notable cases:
- Tarr & Zenith v. Female employee
- Kitty Kat Bar v. Waitress
- East County Glass v. Employee
1. Tarr & Zenith v. Female employee
In 2018, California-based dietary supplements company Tarr Inc and Zenith LLC agreed to pay $50,000 to settle a workplace pregnancy discrimination case filed by the EEOC. According to the lawsuit, the company terminated a female employee a few days after she disclosed her pregnancy. The company also refused to allow another pregnant worker back to work after her maternity leave violating the PDA in both cases.
Tarr Inc and Zenith LLC agreed to settle the case and pay $50,000, revise its workplace anti-discrimination policies, as well as train its employees on the new policies and procedures. As part of the settlement, the company was expected to track all pregnancy-related accommodations and complaints and hire a 3rd party equal employment opportunities monitor to report to the EEOC regularly.
2. Kitty Kat Bar v. Waitress
In 2018, the DFEH reached a $15,000 settlement with Kitty Kat Bar owner Custodio Mendez in a pregnancy discrimination charge filed in 2017. According to the complainant (a waitress at the Kitty Kat Bar located in Huntington Park), Mendez harassed her and changed her working schedule to deny her tips before terminating her employment. According to DFEH’s investigations, Mendez violated the FEHA triggering a dispute resolution at the DFEH’s Dispute Resolution Division.
The employer refused to grant reasonable accommodations such as maternity leave, among other applicable leave on top of harassing and engaging in other unlawful and discriminatory behavior. Besides paying a $15,000 monetary settlement, Mendez agreed to develop as well as implement a written policy prohibiting pregnancy discrimination in his bar.
3. East County Glass v. Employee
In 2018, the DFEH reached a $25,000 settlement with East County Glass Company based in Sacramento for terminating an employee unfairly because of her pregnancy. According to the filed charge, the female employee claimed her bosses at East County Glass Company fabricated a reason to fire her after discovering she was pregnant.
The 2017 charge alleged that her supervisor and company president conspired to replace her after discovering she was pregnant. According to the charge, the complainant was fired a week after asking for reasonable accommodations to her schedule to allow her leave to see her doctor. Although she was fired based on other reasons (budget concerns), she learned she had been replaced by a non-pregnant employee shortly after being fired. Since her replacement was hired shortly after and given similar work (yet the company claimed to have budgetary concerns), the DFEH found clear violations of the FEHA.
After a failed mandatory mediation, the DFEH filed a suit resulting in $22,000 in damages to the terminated employee and an additional $3,000 to offset the DFEH expenses. East County Glass Company was also ordered to come up with policies for handling pregnancy leave and accommodations, post those policies for all employees to see and train managers on fair employment standards.
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