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The following section explains your obligations to provide PDL, reasonable accommodation and/or transfers to pregnant employees.
You are covered by California's pregnancy disability leave law if you are a private employer with five or more employees (full-time or part-time). California state government, counties, cities and any other political or civil subdivision of the state are covered regardless of the number of employees.
Even if you employ fewer than five employees, you should consult legal counsel before terminating a pregnant employee. You may be found in violation of public policy, even if you are not technically covered by the law.
An employee doesn't need to meet any length of service requirement before becoming eligible for PDL, reasonable accommodation or transfer. If you are a covered employer, an employee is eligible on the employee's first day on the job.1
Although the law discusses coverage of “eligible female employees,” an eligible employee also includes a transgender employee who is disabled by pregnancy. For example, if you have a transgender employee who identifies as a male and is pregnant, that employee is still covered by California’s PDL law.
An employee is entitled to PDL when they are “disabled by pregnancy.” An employee is “disabled by pregnancy” if a health care provider deems that the employee is unable, because of pregnancy, to perform any one or more of the essential job functions of the employee's position, or to perform any of these functions without undue risk to the employee, the successful completion of the pregnancy or to other people.
An employee may be “disabled by pregnancy” for a variety of reasons, including but not limited to the following:2
Every pregnancy is different so employers should not make assumptions about how much PDL an employee may need to use. Instead, employers should request medical certification from the employee's health care provider confirming the employee is disabled by pregnancy and needs to use PDL. For more information, see Medical Certification.
Covered employers must also provide reasonable accommodations or transfers to employees who are “affected by pregnancy,” which is a lower threshold to meet than being “disabled by pregnancy.”
An employee is “affected by pregnancy” if it is medically advisable because of pregnancy, childbirth or related medical condition for an employee to transfer or otherwise be reasonably accommodated by the employer.
Employers can request medical certification to confirm that an employee is affected by pregnancy and needs an accommodation and/or transfer.
It is very important to understand how much PDL an employee it entitled to and how to calculate the leave. You should also have a basic understanding of the differences between continuous and intermittent leave, as well as knowing when an employee may need additional leave as a reasonable accommodation.
An employee can take up to four months of unpaid PDL when the employee is actually disabled by pregnancy. The four months of PDL is available per pregnancy, not per year.
There is no annual limit on how much PDL an employee can use. For example, an employee who took time off early in a high-risk pregnancy and then miscarried would be entitled to a new leave of up to four months if the employee became pregnant again that same calendar year.
You must provide up to four months of leave even if you maintain a policy or practice that provides less than four months of leave for other temporarily disabled employees. However, if you offer a more generous leave policy for other temporary disabilities, you must provide the more generous leave to employees temporarily disabled by pregnancy.
Four months of PDL means time off for the number of days or hours an employee normally would work within four calendar months (or 17 1/3 weeks).
For example, a full-time employee who works five, eight-hour days per week, would be entitled to up to 693 hours of PDL (40 hours per week times 17 1/3 weeks). For employees who work more or less than a 40-hour week schedule, their leave entitlement would be the amount of hours they would work in a four-month period. For example, a part-time employee who works 20 hours a week would be entitled to 346.5 hours of leave (20 hours per week times 17 1/3 weeks), and an employee who works 48 hours per week would be entitled to 832 hours of leave (48 hours per week times 17 1/3 weeks).
If an employee’s schedule varies from month to month, a monthly average of the hours worked over the four months prior to the beginning of the leave must be used for calculating the employee’s normal work month.3
PDL can be taken in one continuous period of time, in which case the employee would be entitled to leave equivalent to up to the amount of days they would normally work within four calendar months. Employees can also take PDL intermittently (leave taken in separate periods of time rather than one continuous period of time) or as part of a reduced work schedule.
Regardless of whether PDL is taken continuously or intermittently, you should accurately track the leave used. This is especially important if an employee uses PDL intermittently during their pregnancy and then needs to take a continuous leave when the baby is born. In that case, the time taken intermittently must be deducted from the employee's bank of available PDL and will reduce the amount of PDL available to the employee when the continuous leave begins. For example, a full-time employee who is entitled to 693 hours of PDL and uses 180 hours of PDL intermittently during pregnancy will then have 513 hours (approximately three months) left to use leading up to and after childbirth.
When an employee is using PDL intermittently, you can limit the leave increments to the shortest period of time that your payroll system uses to account for other absences or leaves, as long as the increment is not greater than one hour. For example, if employees must use vacation in 30-minute increments, you can require an employee who comes in 20 minutes late due to severe morning sickness to use 30 minutes of the employee's PDL entitlement
If an employee is still disabled at the end of four months of PDL and needs additional time off, you should begin the interactive process with the employee because additional leave may be a reasonable accommodation under the Americans with Disabilities Act (ADA) and/or California's Fair Employment and Housing Act (FEHA). For more information, see ”Reasonable Accommodation Beyond PDL” in Providing Reasonable Accommodation and Transfer.
If a holiday business closure falls within a week taken as PDL, the entire week is still counted as a week of PDL. But, if your business activity temporarily ceases and employees generally are not expected to report for work for one or more weeks, that time does not count against the employee's PDL entitlement.4
For example, if your company observes a holiday on Independence Day and an employee is on PDL leave the entire week of the holiday, the holiday will count as a day for PDL purposes, even though your office was closed. However, if your company closes for the entire week in which Independence Day falls, the week will not count as leave for PDL purposes.
When an employee is entitled to take PDL depends on when the employee's health care provider designates the employee as disabled by pregnancy, childbirth or related medical conditions. PDL is not available only when an employee is pregnant because an employee can be disabled by pregnancy and need PDL during pregnancy, for childbirth and to recover from childbirth.
For example, a pregnant employee could take PDL intermittently early in her pregnancy because she's unable to work due to morning sickness, and then take a continuous leave of absence that begins before the birth of the child and continues after the birth as the employee recovers from childbirth.
PDL is not bonding time. PDL provides time off when the employee's health care provider determines that the employee is disabled by pregnancy, childbirth and recovery, or any related medical condition. After the employee is no longer disabled, the employee can return to work or, if eligible, take bonding leave under CFRA and FMLA. PDL does not provide leave to stay at home with a new baby after the employee is no longer disabled by pregnancy.
1. 2 CCR sec. 11037
2. 2 CCR sec. 11035(f)
3. 2 CCR sec. 11035(l)
4. 2 CCR sec. 11042(a)(2)(C)