2120 - Pregnancy Disability Leave

Category

Leave

Audience List

• Employee Relations Officers
• Personnel Officers
• Personnel Transactions Supervisors

Synopsis

This policy

• Provides the definition of Pregnancy Disability Leave.
• Provides the length of Pregnancy Disability Leave entitlement.
• Identifies disabilities that qualify for Pregnancy Disability Leave and how to qualify for Pregnancy Disability Leave.
• Discusses when leave can be taken and how to calculate leave entitlement for intermittent use.
• Provides an illustration of using Pregnancy Disability Leave, Family Medical Leave Act leave, and California Family Rights Act leave.
• Provides information on the continuation of health benefits.
• Discusses each department’s requirement to track Pregnancy Disability Leave usage.

Introduction

Pregnancy Disability Leave (PDL) is an unpaid leave for a period of actual disability caused by pregnancy, childbirth, or related medical conditions. PDL is provided for a maximum of four months, as medically needed.

Statement

Leave Entitlement and Employer’s Duty to Accommodate

As outlined in the Department of Fair Employment and Housing (DFEH) regulations, a female employee disabled by pregnancy is entitled to up to four months of unpaid PDL. The PDL regulations clarify that disabled by pregnancy includes the following conditions/situations: severe morning sickness, gestational diabetes, pregnancy induced hypertension, preeclampsia, post-partum depression, prenatal or postnatal care, bed rest, childbirth, loss or end of pregnancy, recovery from childbirth or loss/end of pregnancy, and lactation (medical condition related to pregnancy).

While PDL is an unpaid leave, the female employee may elect to use leave credits including accrued sick leave during any unpaid portion of PDL. Four months is defined as 17.33 weeks. If the employer provides more than four months (17.33 weeks) of unpaid leave for other types of disabilities, the same leave must be made available to female employees who are disabled due to pregnancy, childbirth, or a related medical condition. Accordingly, the result is that there is a statutory floor of four months of PDL.

Unlike leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), there is no 1,250 minimum hours worked requirement under PDL. Rather, to qualify for PDL the female employee need only provide medical verification certifying she is disabled by pregnancy, as described above. If the female employee is disabled by pregnancy, she is entitled to a reasonable accommodation, or a transfer to a less strenuous position, as prescribed by the health care provider. Leave can be taken during any time the employee is physically unable to work because of pregnancy or a pregnancy related condition. Leave can be taken before or after birth, intermittently, or continuously. As PDL can be used intermittently, female employees on PDL can break the continuity of dock. When calculating the female employee’s intermittent leave entitlement, multiply 17.33 by the employee’s regular weekly work schedule. For example, a female employee who is regularly scheduled to work 40 hours per week would be entitled to 693 hours of PDL. Again, as stated above, if the employer provides greater than four months (17.33 weeks) of unpaid leave for other types of disabilities, the same leave must be afforded to the female employed disabled by pregnancy. For example, if the employer provided unpaid leave for six months for other types of disabilities, then the employer would multiply six months times the female employee’s regular weekly work schedule to determine the employee’s intermittent leave entitlement. If the female employee works an irregular schedule, the employer should look to the previous four months to determine the average number of hours worked per week.

PDL runs concurrently with any leave entitlement to which the employee may be eligible under the FMLA. For example, if the employee takes 4 months of PDL, her entitlement to 12 weeks of FMLA leave would run concurrently. Employees are entitled to take PDL in addition to any leave entitlement they may have under the CFRA. For example, if an employee’s doctor takes her off work for 14 weeks based on a disability related to the pregnancy, she would take the 14 weeks PDL which would run concurrently with her FMLA leave, and up to 12 weeks CFRA leave to bond with her baby. The 12 weeks of CFRA leave for baby bonding runs consecutively to the PDL leave, i.e. when the PDL leave ends.

The state follows the calendar method for calculating the 12-week entitlement period in which employees may take FMLA/CFRA leave, meaning from January 1 through December 31 of each year, an employee is entitled to a maximum of 12 weeks of FMLA/CFRA leave. Pursuant to state law, in the event the CFRA leave entitlement for baby bonding crosses two calendar years, the employee would be entitled to the maximum benefit in each calendar year. For example, if the employee started her baby bonding on December 15, 2015, she would take two weeks of her 12 week entitlement in calendar year 2015. Then on January 1, 2016, the clock would reset and she would be entitled to a new 12 week baby bonding leave entitlement under CFRA, meaning she would be afforded a total of 14 weeks of bonding leave for the birth of the baby. Bonding leave must be completed within one year of the event.

Benefit Coverage During PDL

Pursuant to California Code of Regulations, title 2, section 11044, the state employer shall maintain up to four months of health, dental, and vision benefits for female employees on PDL.

Coordination of Health Insurance Coverage with Other Employee Benefits

FMLA/CFRA

If the female employee is eligible for CFRA, then the employee may take leave under CFRA, and the state employer is required to continue benefits for the employee while she is on CFRA. Bonding leave is not limited to female employees. Eligible male employees may take up to 12 weeks of bonding leave under CFRA. The regulations clearly provide that benefits continuation under FMLA or CFRA cannot be used to satisfy any of the four months of PDL benefits continuation. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA leave are two separate and distinct entitlements. Accordingly, benefits can continue under PDL/FMLA (concurrent), and CFRA (consecutive), up to a total of 29.33 weeks.

State Disability Insurance (SDI)/Nonindustrial Disability Insurance (NDI)

Pursuant to the Employment Development Department (EDD), which administers the SDI (applicable to bargaining units (BU) ,1 3, 4, 11, 14, 15, 17, 20, and 21) and NDI (applicable to excluded employees and rank-and-file employees in BU’s 2, 5, 6, 7, 8, 9, 10, 12, 13, 16, 18, and 19) programs, the usual disability period for a normal pregnancy is up to four weeks before the expected delivery date and up to six weeks after the actual delivery. However, a physician/practitioner may certify a longer period if the delivery is by Cesarean section, if there are medical complications, or if the female employee is unable to perform her regular or customary job duties based on a disability due to pregnancy. Under both the SDI and NDI programs, the employer will pay the employer’s portion of the health benefits premium for up to 26 weeks.

FlexElect

Reimbursement account and/or cash option (Flex or CoBen) enrollment will stop while the employee is on an unpaid leave of absence. If the employee returns to pay status in the same plan year, the enrollment will resume. Reimbursement account deductions will continue for employees who have sufficient pay issue to cover the deduction during any given pay period. Pay may issue for time worked, leave credits used to cover the FMLA, CFRA, or PDL absence, NDI or ENDI payments, or supplementing SDI with the use of leave credits.

If an employee is enrolled in the medical reimbursement account and wishes to continue to submit claims for services provided during the leave of absence, the employee may elect to continue making contributions through COBRA.

Application

Employment History/Payroll Processing

Departments are required to track FMLA, CFRA and PDL hours used by the employee. Accurate record keeping is necessary and subject to audit by CalHR.

Departmental Human Resources staff is responsible for documenting a PDL leave of absence and requesting pay and benefit coverage via the State Controller’s Office (SCO). PDL processing instructions can be found in SCO Personnel Letter #15-008.

Authorities

• California Code of Regulations, title 2, section 11035

Resources

FAQs

• Department of Fair Employment and Housing - Pregnancy: Frequently Asked Questions
• Employment Development Department - Pregnancy: Frequently Asked Questions

PML

• PML 2014-019: PML 2014-019 - 8/18/2014 - Pregnancy Disability Leave

Related Policies

• 2107: Family Medical Leave Act / California Family Rights Act

Web Pages

• Certification of Health Care Provider for PDL, Transfer, and/or Reasonable Accommodation: Department of Fair Employment and Housing
• Employee's Rights and Obligations as a Pregnant Employee: Employee's Rights and Obligations as a Pregnant Employee
• Family Care and Medical Leave and Pregnancy Disability Leave: Notice B Department of Fair Employment and Housing
• Pregnancy Disability Leave Brochure: Department of Fair Employment and Housing
• SCO Leave Accounting Letter #14-009: Pregnancy Disability Leave
• SCO Leave Accounting Letter #14-011: California Family Rights Act
• SCO Personnel Letter #15-008: Pregnancy Disability Leave Processing Instructions

Authorized By

Melissa Russell
Chief, Personnel Management Division

Contact Person

Personnel Services Branch
Personnel Program Consultant , Personnel Services Branch
Phone: 916-909-3702
Fax: 916-327-1886
Email: psb@calhr.ca.gov

Superseded Policies

History

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