May 15, 2025
The laws on who is eligible for what and how much when it comes to pregnancy, adoption and the placement of a child are complicated, complex and confusing. Just the way we logic-puzzle-fanatics like them, but not so fun for an employer. We thought we’d share a bit on what you need to know about parent-related time off, including some lesser known laws and regulations.
First, Here’s a Very Basic Breakdown of the Laws applicable to Pregnancy and Parent-Related Leaves
Pregnancy Disability Leave (PDL – California Law): The law applies to businesses with 5+ employees, even if all 5 employees aren’t in California! But PDL only is available to California employees. Employees disabled by pregnancy may be entitled (if their health care professional so certifies) to up to four months (17 and 1/3rd weeks) of leave per pregnancy if they are disabled due to pregnancy, childbirth, or related medical conditions. This leave can be taken all at once or intermittently. An employee is eligible on their first date of employment!
Family Medical Leave Act (FMLA – Federal Law): In order to be eligible for leave under FMLA, as a threshold the employer must have employed 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year, and the employee must work within a 75-mile radius of 50 or more company employees. Under FMLA eligible employees are eligible for up to 12 weeks of unpaid leave for pregnancy disability (including recovery from pregnancy) or for baby bonding, if they have worked for the company for at least 12 months (need not be consecutive) and at least 1,250 hours over the past 12 months. Note: pregnancy disability leave and baby bonding leave run concurrently under FMLA, meaning that an employee has a pool of twelve weeks to use, and not 12 weeks available for each purpose.
California Family Rights Act (CFRA – California Law): The law applies to businesses with 5+ employees, even if all 5 employees aren’t in California! But CFRA leave only is available to California employees. Like FMLA, employees are eligible under CFRA for up to 12 weeks of unpaid leave for baby bonding, if they have worked for the company for at least 12 months (need not be consecutive) and at least 1,250 hours over the past 12 months. Unlike FMLA, leaves taken for pregnancy disability are NOT covered by CFRA. This means that employees are eligible for up to 12 weeks of baby bonding (must be taken within one year of the child’s birth, adoption or start of foster care) in addition to the up to 17 and 1/3rd weeks they are entitled to under PDL.
What You May Not Know (and Need to Know):
Remote Workers May be Eligible for FMLA Even if They Are Not Physically Within a 75-Mile Radius of 50 or More Workers. For purposes of FMLA, an employee’s personal residence is not a worksite. This means that when an employee works from home or otherwise teleworks, their worksite for purposes of determining eligibility FMLA is the office to which they report or from which their assignments are made. Not their home office! So, you may need to rethink your math on remote workers. And let me tell you, this can be some hard math!
Which Leaves Are Being Taken at the Same Time? And Which Are Not?
- For pregnancy-disability related leaves, PDL and FMLA run concurrently. But CFRA does not run at the same time. This means that if an employee takes PDL of at least 12 weeks, no FMLA will be available for baby bonding. But CFRA will be, in addition to the PDL.
- For Baby Bonding. FMLA (if there is any left) and CFRA run concurrently.
Employers Can Control How Much Intermittent Leave is Taken for Baby Bonding, but Not for PDL. Employees are entitled to take PDL on an intermittent basis. An employer may account for PDL use using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour. Employers may mandate that intermittent leave for baby bonding under CFRA (and under FMLA) be taken in two week increments (except on two occasions).
Can You Mandate the Use of Vacation, Sick and PTO? Employers may not mandate the use of vacation or PTO during PDL, but may mandate the use of sick leave. Employers may not mandate the use of vacation, PTO or sick leave for leave taken under FMLA or CFRA where the employee is receiving benefits under an insurance plan. What does this mean? You cannot mandate the use of vacation, sick leave or PTO during any period in which the employee is receiving SDI, FTDI/PFL or benefits under your company’s short term disability insurance policies.
Can I Mandate That An Employee Exhaust Their CFRA Entitlement Once They Exhaust All of Their PDL? Maybe, but be very very careful.
- If the baby has been born, and the mother continues to be disabled, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of the employee’s child. There is no requirement that the employee no longer be disabled by the employee’s pregnancy, childbirth or a related medical condition before taking CFRA leave for reason of the birth of the employee’s child. What this means? If the mother continues to be disabled after the baby’s birth (after exhausting PDL), the mother may elect to utilize CFRA to continue protected disability leave disability.
- If the mother continues to be disabled after exhausting PDL and the baby has not yet been born, and the employee’s health care provider determines that a continuation of the leave is medically necessary, an employer may, but is not required to, allow an eligible employee to utilize CFRA leave prior to the birth of the employee’s child. The employer is not, however, required to provide more leave than the amount to which the employee is otherwise entitled under CFRA. What this means? If the mother continues to be disabled after exhausting PDL and before the baby is born, you can require that the employee use up their CFRA entitlement.
Remember: You Are Not Free to Fire an Employee When They Have Exhausted PDL Without Considering Whether They are Eligible for an Accommodation under the ADA, the Federal Pregnancy Disability Laws and FEHA. If an employee disabled by pregnancy has exhausted any available statutory leave entitlements (PDL, FMLA or CFRA), you still need to consider whether the company is able to grant the employee additional time off as an accommodation, without undue hardship to the business. And undue hardship is a pretty high threshold these days. Without making this a treatise, know that you need to reach out to counsel for help in determining whether and when you need to offer additional time off!
Anything Else You Need to Know About Pregnancy and Other Parental Leave?
So much! Reach out if you’d like more guidance on navigating these often-confusing laws, or if you have any questions about the above fun-facts. We are here to help.
