Question:

My wife is about to take a leave of absence from her job relative to the birth of our first child. We are receiving inconsistent information regarding how much leave she is entitled to. Her employer’s policy is that pregnant employees are only entitled to receive 3 months of leave. My employer’s policy is that pregnant employees are entitled to 4 months of leave. We would like her to be able to take as much time as possible. Please advise as to what her rights are.

Answer:

The answer to your question depends on how many employees your wife’s employer has. Pursuant to the California Fair Employment and Housing Act (FEHA), employers with 5 or more employees, must allow pregnant employees a leave of absence for “a reasonable period of time not to exceed 4 months.” The employer must allow the employee to take this leave either in one block of time, intermittently or on a reduced work schedule. A reasonable period of time is the period during which the employee is “disabled” by pregnancy related conditions. The medical opinion of the employee’s healthcare professional is proof of the existence and duration of the employee’s disability. Moreover, if the employer has other policies or is subject to a collective bargaining agreement that gives other temporarily disabled employees more generous leave than that provided to pregnant employees under the FEHA, the employer must apply those more generous leave policies to pregnant employees.

In addition to these leave provisions, FEHA requires that employers with 5 or more employees make a reasonable effort to transfer female employees who are temporarily disabled by pregnancy to a less strenuous or hazardous position. Such a transfer is required where the employee has requested the transfer based on the advice of her physician and the transfer can be reasonably accommodated by the employer.

Employers of 50 or more employees are generally covered by the California Family Rights Act (CFRA) and Federal Family and Medical Leave Act (FMLA). These employers must potentially provide as long as 7 months of leave to an employee relative to the birth of a child. This is because these employees are eligible for the 4 months of pregnancy leave provided under the FEHA, plus 12 work weeks of leave related to the birth, adoption or foster care placement of a child pursuant to the CFRA. Pursuant to the CFRA, the basic minimum duration of leave taken for the birth, adoption or foster care placement of a child is 2 weeks. However, an employer is required to grant a request for such leave in increments of at least 1 day, but less than 2 weeks, on 2 occasions. All such leave must be concluded within the 12 month period following the birth or placement of the child of the employee.

The FEHA, the CFRA and the FMLA each have employer notice and healthcare provider certification requirements. Depending on which statutory scheme applies to your wife, she should discuss these requirements with her employer as soon as possible to ensure that she is entitled to take the maximum amount of leave allowed under the law.
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