March 2, 2021

Volume XI, Number 61


March 01, 2021

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Understanding CFRA: How CFRA Works for Pregnant Employees

On January 1, 2021, the California Family Rights Act (CFRA) expanded in several ways, including that small employers (those with 5 or more employees) must now provide up to 12 workweeks of CFRA leave within a 12-month period to eligible employees. With the expanded applicability of CFRA, it’s important for California employers to be aware of the sometimes-confusing interplay of CFRA with other state and federal leave laws when it comes to an employee’s pregnancy.

The Laws Employers Need to Know

Aside from CFRA, California’s Pregnancy Disability Leave law (PDL) and the federal Family Medical Leave Act (FMLA) may also come into play when an employee is pregnant, gives birth, and/or seeks leave to bond with a baby.

PDL provides eligible employees with up to 4 months (or 17 1/3 weeks) of unpaid, job-protected leave, per pregnancy, while the employee is disabled due to pregnancy, childbirth, or a related medical condition. Employers with five or more employees must comply with PDL.

Next is the Family Medical Leave Act (FMLA) which provides eligible pregnant employees with up to 12 workweeks of unpaid, job-protected leave within a 12-month period for the employee’s serious health condition (including pregnancy, childbirth, or related medical conditions) or baby bonding purposes. Employers are not required to provide FMLA leave if, among other reasons, the employee seeking leave works at a worksite with fewer than 50 employees in a 75-mile radius.

Meanwhile, CFRA authorizes eligible employees to take up to 12 workweeks of unpaid job-protected leave within a 12-month period for baby bonding purposes. Unlike FMLA, CFRA leave does not get used during an employee’s leave because of pregnancy, childbirth, or related medical conditions (though CFRA leave may be available for other serious health conditions of the employee).

In addition, FMLA and CFRA both provide certain leave entitlements for employees who need leave to care for specified family members with a serious health condition.

How the Laws Work Together

The overlap between FMLA, CFRA, and PDL may seem confusing – how do they work when an employee becomes pregnant?

The first thing employers should know is that FMLA runs “concurrently” with both PDL and CFRA. This means that FMLA does not provide any additional leave entitlement beyond the allowances provided under PDL and CFRA for the purposes of a pregnancy-related leave.

In practice, PDL is provided to a pregnant employee first, potentially before an employee has even given birth. Once an employee is no longer considered disabled by pregnancy, childbirth, or related medical conditions, an eligible employee could then take up to 12 workweeks of baby bonding leave under CFRA. If applicable, FMLA would run concurrently with and get used during, the employee’s PDL and CFRA leaves.

This means, between 17 1/3 weeks of PDL and 12 workweeks of CFRA, an eligible California employee may take up to 29 1/3 weeks off due to pregnancy, childbirth, and baby bonding. However, if an employee exhausts the PDL leave entitlement and remains disabled, other leaves and considerations may come into play such as disability accommodation.

Jackson Lewis P.C. © 2020National Law Review, Volume XI, Number 53



About this Author

Jennifer S. Grock Of Counsel Los Angeles Disability, Leave and Health Management Wage and Hour Workplace Training
Of Counsel

Jennifer S. Grock is Of Counsel in the Los Angeles, California, office of Jackson Lewis P.C. She focuses her practice on advising and counseling employers on various employment-related issues.

Ms. Grock provides management with advice on compliance with state and federal requirements regarding terminations, leaves of absence, harassment and discrimination complaints, workplace investigations, and employee compensation. She also conducts sexual harassment trainings and prepares employment policies.

Ms. Grock's extensive experience includes...