If you are running a business in California, you should be familiar with California’s Pregnancy Disability Leave Law (PDLL). If your company is planning to, or has recently hired, its 50th employee, you’ve crossed a threshold that significantly alters your legal obligations to your employees and you need to understand the relationship between PDLL, FMLA and CFRA.

PREGNANCY DISABILITY LEAVE LAW

California’s Pregnancy Disability Leave Law (PDLL), which is part of the Fair Employment and Housing Act (FEHA) and requires employers to provide employees up to four months of leave for disability due to an employee’s pregnancy, childbirth or related medical conditions. There is both a preferential treatment and an equal treatment component to the law:

Special treatment aspect of law: Employees are entitled to pregnancy disability leave of up to four months even if the employer normally allows less than four months leave for similarly situated employees affected by other temporary disabilities.

Equal treatment aspect of law: If an employer allows more than four months leave for similarly situated employees with other temporary disabilities, it must extend the more generous leave to employees temporarily disabled by pregnancy, childbirth or related medical conditions as well.

Exception–occupational disabilities: An employer may provide a longer leave to employees who suffer from disability due to occupational injury or illness than to employees disabled by pregnancy, childbirth or related medical conditions of a non-occupational nature.

Generally, employees on pregnancy disability leaves are to be treated the same as employees on other disability leaves in terms of pay, benefits and other terms and conditions of employment. The relevant comparison for discrimination purposes is between non-occupational pregnancy disability leaves and leaves for other non-occupational disabilities.

There is no specific requirement that group health benefits (or other benefits) be maintained during the leave. In general, however, employers may not discriminate between employees taking pregnancy disability leaves and employees taking unpaid leaves for other temporary disabilities with respect to “health plans, employee benefit plans, including life, short-term and long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans.”

When an employee returns from pregnancy disability leave, she must receive the same benefits as before the leave, with no new qualification period, physical examination requirement, or exclusions for preexisting conditions.

Seniority and other benefits accrue on the same basis as during other leaves. However, forfeiture of seniority earned prior to leave is unlawful.

PDLL’s RELATIONSHIP TO FMLA AND CFRA

Under federal law, the Family and Medical Leave Act (FMLA) governs leave taken for an employee’s incapacity due to pregnancy, childbirth or related medical conditions, just like leave for any other “serious health condition” of an employee. Pregnancy disability leave under the PDLL runs concurrently with leave taken under the FMLA. Thus, if an employee takes 12 weeks of leave due to pregnancy, childbirth or related medical conditions and the employer gives the proper FMLA notices, (including designating the leave as FMLA leave), the employee will have exhausted the annual entitlement to FMLA leave and will have exhausted 12 weeks of the four-month PDLL leave entitlement.

However, the California Family Rights Act (CFRA) expressly excludes an employee’s incapacity due to pregnancy, childbirth or related medical condition from the definition of “serious health condition.” (Incapacity of a child, spouse or parent due to pregnancy, childbirth or related medical condition, however, is included as a ‘serious health condition’ under the CFRA.) Therefore, a PDLL leave does not run concurrently with a CFRA leave entitlement for an employee’s own serious health condition. Rather, CFRA leave and pregnancy disability leave are two separate and distinct rights that employees have under California law. Thus, following a pregnancy disability leave, an employee will still have the right to take a CFRA leave of up to 12 weeks “for reason of the birth of her child, if the child has been born by this date” (provided that the entire CFRA leave was not taken prior to the pregnancy disability leave). If the maximum amount of both types of leave is taken, the maximum total leave entitlement will be 4 months plus 12 workweeks (4 months of pregnancy disability leave under the PDLL, of which 12 weeks may also be FMLA leave plus 12 workweeks of CFRA leave). An employee is only entitled to use the maximum amount of pregnancy disability leave if she was actually disabled by pregnancy for 4 months, and is entitled to the CFRA leave only if she meets CFRA eligibility rules and has not previously used the CFRA leave for another purpose.

Unlike PDLL, which has no length of service requirement, CFRA and FMLA require an employee have worked 1250 hours prior to the commencement of a leave.

In conclusion, these laws are complicated and interact in ways that are not always easily forseen. Your company needs sophisticated legal advise as to how to deal with these laws as you grow, and your human resources department needs to have protocols in place to handle employee leave requests, whether related to pregnancy or not.