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A gestational surrogate is someone who carries a pregnancy and gives birth to a child for another person or couple, also known as the “intended parents.” Regardless of the reason for the pregnancy, your employee may have rights to leave under both federal and California law, as well as other protections.
If you have five or more employees, your pregnant employee would be covered by California’s pregnancy disability leave (PDL) law. PDL allows an employee to take up to four months, or 17 1/3 weeks, of protected leave when the employee is disabled by pregnancy. The employee’s health care provider determines how long the employee is disabled and needs leave, which can be both before and after the birth of the baby.
The fact that the employee is pregnant as a surrogate doesn’t have an impact on their right to leave — the reason for their pregnancy is irrelevant. (In addition to leave, PDL requires employers to provide reasonable accommodations to employees because of pregnancy, if needed.)
If you have 50 or more employees, your employee may also be eligible for up to 12 weeks of leave under the federal Family and Medical Leave Act (FMLA).
The FMLA treats pregnancy as a serious health condition, so if your employee meets the FMLA eligibility requirements (has worked for you for at least 12 months, has worked at least 1,250 hours in the 12 months before taking leave, and works at a worksite with 50 or more employees in a 75-mile radius), their leave will be PDL and FMLA running concurrently.
Again, the reason for the employee’s pregnancy is irrelevant to their right to time off — what matters is that they are disabled by their pregnancy.
Once your employee has recovered from childbirth and their doctor returns them to work, their leave rights would likely end.
If the surrogate surrenders the baby to the intended parents, which is how surrogacy is designed to work, your employee wouldn’t have a baby with whom to bond and thus wouldn’t have a legal right to child bonding leave. (The intended parents, however, may be eligible for child bonding leave from their employer.)
Once your employee is released to return to work, you may need to provide them with a lactation accommodation. Both federal and California law require employers to provide reasonable accommodations to employees who want to express (pump) breastmilk at work.
Lastly, don’t forget that pregnancy, childbirth, breastfeeding and related medical conditions are protected characteristics under federal and California law. It is unlawful to discriminate against an employee because of pregnancy or to retaliate against an employee who took PDL/FMLA leave because of pregnancy. These protections will extend to all your pregnant employees, including those who are surrogates.
Read more about Employees Expressing Breast Milk at Work and Pregnancy Disability Leave in the HR Library.