In California, maternity leave rights are governed by several sets of laws and regulations. The most important of these for the purposes of maternity leave is California’s Fair Employment and Housing Act (called “FEHA”). ((Gov’t Code, §§ 12900–12996. It’s important to note that maternity leave may also be covered by Family and Medical Leave Act (called “FMLA”) or California’s Family Rights Act (called "CFRA"). Each can play different roles in the rights of women during maternity leave. This article, however, focuses on FEHA and its accompanying regulations.))

The laws applicable to pregnant women in the workplace during (and after) pregnancy are obviously numerous. Both the employer and employee have rights and duties in this situation. But understanding California law does not have to be complicated. It’s important for expecting mothers to know their rights in planning for the birth of their children. This article provides an overview of California’s law on maternity leave.

If you have any unanswered questions about maternity leave rights in California, be sure to contact a qualified employment attorney in your area today.

General Rule: Unpaid maternity leave is a right.

The most basic question that expecting employees face is whether they are entitled to maternity leave at all (regardless of whether it is paid). California’s FEHA applies to employers that have five or more employees, which includes most businesses in California. ((Gov’t Code, § 12926, subd. (d); Cal. Code of Regs., tit. 2, § 7291.2, subd. (h).)) FEHA requires employers to give female employees time off work if she is:

• Disabled by pregnancy.
• Disabled by childbirth.
• Has a medical condition related to pregnancy or childbirth. ((Gov’t Code, § 12945, subd. (a)(1).))

The leave must be for the time that the employee is disabled from pregnancy or childbirth, but no more than four months. ((Id.))

Defining "disabilities" related to childbirth and pregnancy-related illnesses.

In California, expecting mothers are entitled to maternity leave for more than the mere childbirth itself. They have a right to time off for disabilities related to the pregnancy and childbirth. The definition of "disabled" in these circumstances is fairly broad.

A woman is considered disabled by pregnancy or childbirth if, in the opinion of her health care provider, she would be unable perform an essential function of her job. ((Cal. Code of Regs., tit. 2, § 7291.2, subd. (f).)) A woman is also disabled by pregnancy or childbirth if her health care provider believes that she cannot perform an essential function without undue risk to herself, to her pregnancy’s successful completion, or to other persons. ((Id.)) In less common circumstances, a woman may be disabled by pregnancy if, in the opinion of her health care provider, she severely suffers morning sickness.

California’s regulations provide a list of examples where a woman would be disabled by pregnancy. These include (but are not limited to):

• Prenatal care.
• Postnatal care.
• Bed rest.
• Gestational diabetes.
• Pregnancy-induced hypertension.
• Preeclampsia.
• Post-partum depression.
• Childbirth.
• Loss or end of pregnancy
• Recovery from childbirth. ((Id.))

Again, this list is not exhaustive. So, many other illnesses related to pregnancy or childbirth may qualify as a disability for maternity leave purposes.

Female Employees are not always entitled to pay during maternity leave.

In general, employers are not required to pay employees during maternity leave. ((Cal. Code of Regs., tit. 2, § 7291.11, subd. (a).)) There are, however, situations where the employee may have a right to pay. For example, if the employer provides paid leave for other types of temporary disabilities, the employer must also provide paid maternity leave. ((Id.))

In many cases, expecting mothers may have accrued sick pay or vacation pay prior to their maternity leave. California law treats sick pay and vacation pay a bit different. As for sick pay, an employer may require the employee to use accrued sick pay or sick leave time during the otherwise unpaid portion of her pregnancy disability leave. ((Cal. Code of Regs., tit. 2, § 7291.11, subd. (b)(1).)) Employees may also opt to use their sick pay during this time, regardless of whether their employer requires it.

As for vacation pay, employers may not require employees to use their vacation pay during maternity leave. ((Cal. Code of Regs., tit. 2, § 7291.11, subd. (b)(2).)) Employees can elect, at their option, however, to use their vacation pay. The choice lays solely with the employee.

Even though pregnant employees do not always have a right to pay from their employers during maternity leave, most California employees have a right to California’s state disability insurance. Fortunately, pregnancy- and childbirth-related illnesses are considered disabilities by California law. So employees often have a right to disability insurance. For more information about disability insurance, check the website for California’s Employment Development Department: http://www.edd.ca.gov/

How much maternity leave are female employees allowed in California?

In general, there are two types of maternity leave: (1) pregnancy disability leave, and (2) leave under the California Family Rights Act. Added together, employees may be entitled to up to seven months of maternity leave. However, a portion of this calculation requires the employee to be disabled by her pregnancy. So, it's better to look at disability leave rights separately from leave rights under the California Family Rights Act.

Pregnancy disability leave.

For pregnancy disability leave, employers may adopt their own policy, but, at a minimum, they must comply with California's FEHA. FEHA gives female employees a right to maternity leave for up to four months. ((Gov’t Code, § 12945, subd. (a)(1).)) However, this maternity leave is only available to the employee as long as she is disabled from the childbirth, pregnancy, or a related condition. If the female worker recovers faster than four months, she may not be entitled to the entire four months of maternity leave.

California's regulations define "four months" as the number of days the employee would normally work within four calendar months. ((Cal. Code of Regs., tit. 2, § 7291.2, subd. (l).)) If the number of days varies from month-to-month, the employer must calculate the average number of days the employee worked in the preceding four months.

Again, California employers may adopt policies that provide more benefits than FEHA. If employers adopt these policies or provide for them in employment agreements, then female employees may have a legal right to additional maternity leave.

Leave to bond with your child.

In addition to California's pregnancy disability leave rights under FEHA, California provides leave rights under the California Family Rights Act ("CFRA"). ((Gov't Code, § 12945.2.)) To be eligible for leave under CFRA, certain requirements must be met:

• Employer size. The employee must work for an employer that has at least 50 employees within a 75 mile radius of the employee's worksite. ((Gov't Code, § 12945.2, subd. (b).))
• Employment duration. The employee must have worked for their employer more than 12 months.
• Hours of work. The employee must have worked at least 1,250 hours for the employer of work in the preceding year.

If these requirements are met, the employee is entitled to take up to 12 weeks of family care and medical leave in any given 12-month period. This leave can be used for the purpose of child bonding. ((2 Cal. Code Regs, tit. 2, § 7297.6, subd. (c).)) There is no requirement that either the mother or the child have a serious health condition to take this leave.

The two types of leave are cumulative.

The right to as much as 12 weeks of bonding time under CFRA is separate and distinct from the right to pregnancy disability leave under FEHA. Accordingly, the bonding time under CFRA may be taken after the employee takes up to four months of pregnancy disability leave—adding up to as much as seven months of total maternity leave depending on the length of the employee's pregnancy disability.

Are employees entitled to health care benefits during maternity leave?

In many cases, yes. If the employee has group health coverage provided by their employer, the coverage must continue during the maternity leave. ((Cal. Code of Regs., tit. 2, § 7291.11, subd. (c).)) The scope of the coverage must be the same as if the employee hadn’t taken maternity leave at all.

Because employers are only required to provide up to four months of maternity leave, the coverage may be terminated if more time is taken. However, employers are allowed to provide more than four months of coverage in their discretion.

For many employees, including state employees, collective bargaining agreements may control the right to continued health care benefits during maternity leave. So if the employee is unionized or part of a collective bargaining agreement, it’s important to check the terms of the collective bargaining agreement.

Are employees entitled to accrue other benefits (like seniority) during maternity leave?

In many cases, yes. Employees have the same rights during maternity leave as they would during other types of unpaid disability leaves. So, if the employer provides pension benefits, seniority accrual, accident insurance, or similar benefits during disability leave, then female employees have a right to the same benefits during maternity leave.

Additionally, if the employer allows seniority to accrue when employees are on paid leave, such as vacation or sick leave, the employer must also allow seniority to accrue during maternity leave—regardless of whether the maternity leave is paid. ((Cal. Code of Regs., tit. 2, § 7291.11, subd. (d).))

In any event, the employer may not reduce seniority during maternity leave. So, at a minimum, the employee will return to work with as much seniority as they had when they left.

Does maternity leave need to be taken all at once?

As discussed above, California’s FEHA provides for as much as four months of maternity leave for disabilities related to pregnancy and childbirth. But what if the disabilities are not continuous? Can expecting mothers take some time off during one trimester and then the remainder after birth?

In general, intermittent leave is considered a reasonable accommodation. Employers must provide reasonable accommodations for employees if they’re requested and if a health care provider has advised it. If intermittent leave is expected, employers may explore a temporary transfer to a similar position with equal pay and benefits. Sometimes, alternative positions can accommodate intermittent leave better or they may render the intermittent leave unnecessary.

Can an employer require that maternity leave be earned?

No. California’s law requiring employers to give maternity leave applies to all female employees—no matter how long they have worked for the employer. ((Gov’t Code, § 12945, subd. (a)(1).)) Employers, for example, may not require workers to earn maternity leave in any way before they become eligible for it. ((Cal. Code of Regs., tit. 2, § 7291.4.))

As long as the employer employs five or more people, California requires the employer to provide all female employees with maternity leave immediately upon hiring if that employee becomes disabled from a medical condition related to pregnancy or childbirth. In other words, the employer cannot place a length-of-service requirement on female employers before allowing them time off for maternity leave.

Can employees be fired or harassed for becoming pregnant?

Absolutely not. California employers are prohibited from discriminating against or harassing female employees due to pregnancy or a belief that someone might be pregnant. ((Gov’t Code, § 12940; Cal. Code of Regs., tit. 2, § 7291.3.)) Employment discrimination based on pregnancy is a type of sex discrimination, which is prohibited by law. ((Gov’t Code, §§ 12926, subd. (q)(1), 12940, subd. (j)(4)(C).)) So, expecting mothers are completely protected from the risk of termination, harassment, or discrimination in the employment context.

Are expecting mothers required to give employers advance notice of maternity leave?

In general, expecting mothers should give their employers as much notice as possible if maternity leave is foreseeable. ((Gov’t Code, § 12945, subd. (a)(1).)) California's regulations on the topic suggest that employers can legally deny maternity leave (or take action punishing the employee for taking maternity leave) if a reasonable advance notice is not given. ((See, e.g., Cal. Code of Regs., tit. 2, § 7291.10, subd. (c).)) So it is important for expecting mothers to provide employers with as much as 30 days advance notice of the maternity leave, if possible.

The notice should include the timing and expected duration of the leave. If possible, a written notice will provide the employee with greater protection.

If the employee seeks a reasonable accommodation from the employer based on a pregnancy- or childbirth-related disability, the employee should also provide a timely notice. ((Cal. Code of Regs., tit. 2, § 7291.17, subd. (a).)) This notice must be at least 30 days, if practicable.

If advance notice of 30 days is not possible, the employee should give notice as soon as they know that will need maternity leave. The employee should also consult with the employer to make a reasonable effort, within the scope of a health care provider’s advice, to schedule medical treatment to accommodate the employer’s operations.

Are employers required to provide accommodations for pregnant women?

Yes. If a pregnant female employee requests it, California employers must make reasonable accommodations for the employee. ((Cal. Code of Regs., tit. 2, § 7291.7, subd. (a).)) That request, however, must be based on the advice of a health care provider. ((Id.)) Employers are permitted to require their employees to provide a medical certification that the accommodation is needed. ((Cal. Code of Regs., tit. 2, § 7291.7, subd. (c).))

The phrase “reasonable accommodation” can be the subject of widespread disagreement. What accommodations are “reasonable”? Courts will look at the facts of each individual case. They will consider many factors, including:

• The employee's medical needs.
• The duration of the needed accommodation.
• The employer's legally permissible past and current practices.
• And other factors that might be important. ((Id.))

Providing intermittent maternity leave during the pregnancy is considered a reasonable accommodation.

In some situations, transferring the employee to a less difficult job is also required. If the employer has a policy, practice, or agreement to transfer temporarily disabled employees to easier jobs, then pregnant employees are also entitled to that right. ((Cal. Code of Regs., tit. 2, § 7291.8.)) If the employer doesn’t have any policy, practice, or agreement in place, expecting mothers may still have a right to transfer if it can be reasonably accommodated and a health care provider has advised it. ((Id.))

Do California employees have a right to their job after taking maternity leave?

Yes. Employees in California that exercise their right to maternity leave may not be discriminated against for doing so. After recovering from their pregnancy-related disability, they have a right to return to their same or a similar position. ((Cal. Code of Regs., tit. 2, § 7291.10, subd. (a).)) In fact, worried employees can request a written guarantee from their employee that they can return to their position. ((Id.)) If the employer receives this kind of request, they must provide the guarantee.

This right, however, does not apply if the employer can show that the expecting mother would not have had been employed in the same position for legitimate business reasons. ((Cal. Code of Regs., tit. 2, § 7291.10, subd. (c).)) These business reasons must be unrelated to the maternity leave. Importantly, the burden is on the employer to prove this by a preponderance of the evidence. So the law favors the female employee by default.

Final Thoughts

Overall, California women are in a strong position in demanding maternity leave for themselves. However, it's important that the maternity leave be based on legitimate medical disabilities related to pregnancy or childbirth. California law does not provide blanket protection for time to bond between a mother and a child. But that often may occur during recovery from the childbirth.

Importantly, employers often violate the rights of their employees. The employer may not even realize they are doing so. It is up to the employee to protect their rights. But acting to protect rights can be a tricky thing. In most cases, it is helpful to obtain the advice of a qualified employment law attorney in your area. If you live in Los Angeles or Orange County, consider getting in touch with Petronelli Law Group, PC at: (949) 954-8181.

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