Maternity leave laws in California require companies with at least 5 employees to provide 12 weeks of unpaid family leave to new parents. Moreover, companies with at least 5 employees must provide up to four months of unpaid pregnancy-disability leave to employees unable to work due to pregnancy-related conditions or childbirth.
California employers are not required to provide paid maternity leave. But there are ways to receive money during this time. These include using accrued paid time off, state disability insurance, temporary disability pay, and the Paid Family Leave Act. Employers are also required to keep workers on their health insurance during maternity leave.
Employers may not discriminate against workers for taking maternity / paternity leave that they are legally entitled to. If they do, employees can file a claim with California’s Department of Fair Employment and Housing. If that does not work, they can file a lawsuit.
In this article, our California employment and labor law attorneys discuss:
- 1. What is pregnancy disability leave?
- 2. How long is maternity leave in California?
- 3. What is reasonable accommodation leave?
- 4. Is maternity leave paid in California?
- 5. How do employees request maternity leave?
- 6. Can people get fired for taking maternity leave?
- 7. Can employees sue for pregnancy discrimination?
Pregnancy disability leave (PDL) is time away from work for female employees and employees with uteruses who become unable to work due to their pregnancy. Up to four months of unpaid leave is available to workers in the state of California if:
- They are mentally or physically disabled from the pregnancy, birth, or related medical condition; and
- The company employs at least five people (with the exception of certain religious nonprofits)
Both full- and part-time workers qualify for pregnancy leave, as do both long-term and recently-hired workers. And they can take the time off in increments.1
Employees are disabled if their doctor believes they cannot carry out an essential job function. Common PDL-qualifying disabilities are:
- Severe morning sickness
- Gestational diabetes
- Postpartum depression
- Prenatal and postnatal care
- Other health conditions requiring bed rest
Many workers qualify for PDL by week 36 of their pregnancy (about four weeks before the due date). Vaginal births usually warrant six weeks of leave (if there are no issues). And C-sections (caesareans) may require eight weeks of unpaid leave at least.
Once PDL ends, employees must get their same – or similar – job back unless there is a legitimate business reason.2 A common example is mass layoffs.
Family leave (a.k.a. baby bonding leave) is time away from work for employees to bond with a new child. Under the California Family Rights Act (CFRA), male, female, trans, and nonbinary workers in California may take up to 12 weeks of unpaid family leave a year if:
- The employer employs at least 5 people; and
- The employee has worked for the employer for more than 12 months prior to family leave date; and
- The employee worked at least 1,250 hours for the employer in the last 12-month period; and
- The employee has a new child by birth, adoption, or foster care placement.3
Employees who give birth may take these family leave benefits following PDL. This way, they get up to seven months of time off for each pregnancy.
Family leave can be taken in increments throughout one year. But employers can require that only two of these increments last less than two weeks.
Once family leave ends, employees must get their same – or similar – job back. Employers must also give them a reasonable opportunity to catch up on any training.4
This is time off for impaired workers to receive treatment and recover. Pregnant employees or new parents may be eligible for this time off if:
- California’s anti-discrimination laws cover the employer; and
- The employee cannot perform essential job functions due to a physical or mental disability; and
- The employee can perform essential job functions if given leave; and
- The leave will not cause the employer undue hardship.
Eligible employees can take reasonable accommodation leave in addition to PDL and family leave. This time off may be paid or unpaid depending on the company.5
Courts have held that these types of leave benefits should be a last resort under state law.6
Employers do not have to give paid leave.7 They just have to leave their workers’ jobs open for when they return. But there are ways for employees to continue receiving money.
- Accrued Paid Time Off. Employees may use their vacation or sick days towards maternity leave. Employers may even require workers to use their accrued paid leave.
- Health insurance. Companies must keep workers on PDL or family leave on their group health insurance at the same contribution rates.
- Paid Family Leave Act (PFL). Eligible employees can get partial pay for six weeks during a one-year period to bond with a new child. The maximum weekly salary is $1,300.
- Temporary Disability Pay. Employers must pay their employees on PDL if they would pay similarly-situated employees on disability leave for non-pregnancy/birth-related conditions.
- State Disability Insurance (SDI). Employees eligible for SDI must have paid $300 or more into the program for five to 18 months before the claim’s start date. And the employee must have a pregnancy- or birth-related short-term disability. Currently, SDI pays out $194.91 to $1,299.43 per week.
Some companies do provide paid maternity leave as a matter of policy. Employees are advised to consult with a labor attorney to discuss all of their options and what they are entitled to.
Some companies have handbooks with instructions. Some requests must be written. Other businesses allow oral requests.
Workers should give bosses reasonable notice, which is usually no fewer than 30 days. If a medical emergency arises, then as soon as possible.8
For PDL, employees may have to provide a note from their health care provider.
Companies with less than five workers may fire or demote employees for taking PDL. (Certain religious non-profits are never required to provide PDL.)
Workers who take family leave may be fired or demoted if either:
- The company employs less than 5; or
- The employee worked 12 months or less for the company; or
- The employee worked less than 1,250 hours in the prior 12 months
Otherwise, firing or demoting a pregnant employee or new parent in violation of their leave rights is a form of discrimination.
Note that California’s anti-discrimination laws do not protect people employed by their spouses, parents, or children.9 And independent contractors are not entitled to time off.10
First workers should try to resolve the matter in-house, such as by meeting with the manager.
If that does not work, the employee must submit a complaint to California’s Department of Fair Employment and Housing (DFEH). Employees have one year to file this complaint after the date of the alleged violation.11
If the DFEH cannot resolve the dispute, it will issue the employee a right-to-sue letter. Only then can the employee formally sue the company. The employee would need to show four things:
- California’s discrimination laws cover the employer;
- The employer fired, demoted, or refused to promote the employee (or took another negative action);
- The employer’s reason was the employee’s pregnancy, possible future pregnancy, or pregnancy-related disability; and
- The employer’s negative action caused the employee harm
Employees have one year to sue after receiving the right-to-sue letter. The employee may seek such remedies as:
- Compensatory damages (such as lost wages);
- Punitive damages (to punish the employer); and/or
- Job reinstatement
Meanwhile, employers may not fire or otherwise retaliate against employees just for filing a claim against them.12
- Govt. Code 12945; see the California Family Rights Act (CFRA); California Senate Bill 1383 (2020).
- Cal. Code Regs., title 2, 11043.
- Govt. Code 12945.2;
- Cal. Code Regs., title 2, 11089; see the Employment Development Department (EDD); see the federal Family Medical Leave Act (FMLA).
- Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338-1341 (2013).
- Jensen v. Wells Fargo, 85 Cal.App.4th 245, 263 (2000).
- Cal. Code Regs., title 2, 11044.
- Cal. Code Regs., title 2, 11050.
- Govt. Code 12926.
- Cal. Code Regs., title 2, 11008.
- Govt. Code 12960.
- Govt. Code 12940, 12956.