How long do I get to take off of work for pregnancy leave?
This is a complicated question and employers and employees often get it wrong. When there is a question concerning such a leave, There are both State and Federal laws that govern pregnancy leave, however, this article concerns only California law since California law typically is more favorable for employees.
Under California law, the employer must provide all employees up to four months of leave for disability due to an employee’s pregnancy, childbirth or related medical conditions if the employer employs at least five employees. Disability due to pregnancy occurs if the employee is unable to work, unable to perform one of her essential job functions, or unable to perform an essential job function without undue risk to her self, the baby, or the successful completion of her pregnancy.
In addition, an employer must provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth or related medical conditions. Pregnancy leave may be taken intermittently or on a reduced work schedule basis when medically advisable as determined by the health advisor of the employee (for example an employee who misses two hours of work because of severe morning sickness may count that towards her pregnancy leave entitlement).
In addition, the employee may take up to an additional 12 weeks of medical leave under the California Family Rights Act after the baby is born if 1) the employee has worked at least 1250 hours during the year prior and 2) there are at least 50 employees of the company working within a 75 mile radius of where the employee works. The employee may only take that portion of 12 weeks that has not already been used during the past year for another CFRA leave.
Following a pregnancy leave, an employee has the right to be reinstated to the same position she held before the leave unless the position no longer exists or if the employer could not fill the position with a temporary employee without substantially undermining the employer’s ability to operate the business safely and efficiently. If an employee cannot be reinstated in the same position, then the employee has a right to be reinstated in an available comparable position. However, if the employee takes a CFRA leave immediately following the pregnancy leave, then the CFRA governs the employee’s reinstatement rights.
There are many factors that may affect your rights under the California pregnancy leave laws. This article only covers the general scope of the law and is for information purposes only. This article is not intended to give legal advice. If you need a consultation concerning a specific question relating to California pregnancy leaves, please contact Stevens & McMillan at (800) 738-3353.
