I've copied an article from a professional human resource website that I belong to. As you'll see, you have additional protection in the state of CA under state laws (assuming your employer is covered under these laws). Your employer should have notified you in writing of what they were counting as FML.
In any event, good luck, and I hope this helps:
PREGNANT IN CALIFORNIA: WHICH FAMILY LEAVE LAWS APPLY?
By Cornelia Gamlem, SPHR
August 1999
You are an HR practitioner in California. You have employees who are taking leave because of pregnancy and childbirth. You know there are a number of laws that cover the situation, but they appear to overlap. What exactly is the employee entitled to? For how long do you have to hold their job? Which law or laws take precedence? This white paper will attempt to answer some of these questions and provide an easy reference for administering leave related to pregnancy and childbirth in California.
The federal Family and Medical Leave Act (FMLA) entitles eligible employees working for covered employers to take up to 12 work weeks of unpaid, job protected leave in a specified year. The leave can be taken for the birth of a child or placement of a child for adoption or foster care, the need to care for a child, spouse or parent with a serious health condition, or the employee's own serious health condition. Under FMLA, a disabling condition related to pregnancy is considered a serious medical condition. If a woman is having a difficult pregnancy and needs time off prior to the birth of the child, that time will count toward her 12-week leave entitlement under FMLA.
However, the FMLA regulations also provide that when state or local laws exist, the employee is eligible for the most generous provisions available. In California, two additional laws impact leave under the circumstances described above. Each law covers a separate circumstance. The effect is that the employee could be entitled to a maximum amount of job-protected leave equaling approximately seven months.
With respect to pregnancy and childbirth, the California Family Rights Act (CFRA) allows eligible employees up to 12 weeks of leave in a 12-month period for the birth of a child, for the adoption of a child, for the placement of a child in foster care. It also allows leave to care for a seriously ill family member, or for the employee's own health condition, other than pregnancy-related disability. While the provisions of the CFRA are similar to FMLA with respect to the birth of a child or the placement of a child for adoption, an employee in California has no protection under this law for pregnancy-related disability. In other words, pregnancy is not covered or considered a serious health condition under the CFRA. The woman with the difficult pregnancy is not entitled to protected leave under this law. This leave can only be used by an employee following the birth of a child. However, disabilities related to pregnancy are covered under a separate law.
The California Fair Employment and Housing Act (CA-FEHA), the same state law that prohibits discrimination, provides protection for pregnancy-related disabilities. It allows employees disabled by pregnancy, childbirth or a related medical condition to take up to four months of protected leave. It does not provide for any time off for the birth or placement of a child in foster care or adoption. Thus, the woman with the difficult pregnancy is entitled to up to four months of disability leave (with the proper medical certification), and the employer cannot discriminate against her on the basis of the pregnancy or pregnancy-related disability. If the four-month leave under CA-FEHA is exhausted and additional disability leave is required by the employee's health care provider, the employer may, but is not required to, grant leave under CFRA prior to the birth. The relationship among these three laws is described in the matrix at the end of this white paper.
Finally, the FMLA runs concurrent with the CA-FEHA or the CFRA. If an employee has no complications with her pregnancy, she could be entitled to a recovery period of approximately six weeks that her doctor could deem to be disability related. In that case her FMLA leave and her CA-FEHA leave would begin at approximately the time of her delivery. After exhausting her six weeks of CA-FEHA, CFRA leave would begin. In this case, the employee could receive 18 weeks of job protected leave.
FMLA - 12 weeks Disability and care of child
FEHA – 6 weeks Disability only
CFRA – 12 weeks No disability; care of child only
In another scenario, if an employee is having complications with her pregnancy and is on leave prior to delivery of her child, that time would count toward both her FMLA leave as well as her CA-FEHA leave. For example, if a women was placed on disability leave by her doctor for three months prior to delivery, that time, approximately 12 weeks, counts toward both her FMLA protected leave as well as her CA-FEHA protected leave. If she delivers during the 13th week of leave, she would then be entitled to additional recovery (disability) time of approximately four weeks (for a total of 16 weeks or 4 months) under CA-FEHA. Thereafter, she would be entitled to 12 weeks under the CFRA for the care of her newborn. In this case, the employee would have received approximately 28 weeks (four months plus 12 weeks) of job-protected leave.
FMLA - 12 weeks Disability and care of child
CA-FEHA – up to four months Disability only
CFRA – 12 weeks No disability; care of child only
In the example above, if the employee's pregnancy-related disability had lasted for up to four months, she would then be eligible for up to four months plus twelve weeks of job protected leave, the maximum allowed under both California laws.
Comparison of FMLA, CFRA and CA-FEHA Family Medical Leave Act California Family Rights Act California Fair Employment & Housing Act
Pregnancy Disability Covered as a Serious Health Condition? Yes Covers both pregnancy disability and birth or adoption. No No requirement for a serious health condition for employee or child. Birth or adoption only. Yes Covers employees disabled by pregnancy only
Covered Employer 50+ Employees 50+ Employees 5+ Employees
Eligible Employee 12 months and 1250 hours 12 months and 1250 hours None
Duration 12 weeks 12 weeks 4 months
Discrimination provision No provision for discrimination No provision for discrimination Pregnancy-related discrimination prohibited
Certification Employer may require Employer may require Employer may require
Employee Notice 30 days if foreseeable, or as soon as practicable 30 days if foreseeable, or as soon as practicable 30 days if foreseeable, or as soon as practicable
Employer response to leave request Within two business days unless extenuating circumstances As soon as practicable, no later than 10 calendar days As soon as practicable, no later than 10 calendar days
Intermittent/reduced leave When medically necessary, in time blocks as small as payroll system permits. For birth or adoption, must have employer's consent When medically necessary, in time blocks as small as payroll system permits. For birth or adoption, in 2 week increments. When medically necessary, in time blocks as small as payroll system permits.
Substituting paid leave Employee may choose or employer may require. Employer need not permit use of sick leave for other than reasons specified in leave policy Employee may choose or employer may require. Sick leave for other than employee's own medical illness requires both employer and employee to agree. Employee may choose to substitute paid leave but employer may not require.
Continuation of benefits Employer must maintain coverage under group health plan under same condition. Can require employee to pay his/her portion of the premiums. Employer must maintain group health benefits, and all other benefits and seniority under same conditions as applicable to other unpaid disability leaves. Employer must maintain group health benefits, and all other benefits and seniority under same conditions as applicable to other unpaid disability leaves.
Right to reinstatement Same or equivalent position. Key employee exception. Same or comparable position. Key employee exception. Same or comparable position. Undue hardship defense.
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