Hi,

I am 24 weeks pregnant, due on October 1 and have some questions as to what I am entitled to in terms of maternity benefits.

The company I work for has 55+ employees and is based largely in New York. I work full time out of our California office (which has a total of 2 employees) and have been with the company as an employee as of November 1, 2005. Prior to joining the company as an employee, I worked as a consultant from August 9th - October 31, 2005.

My questions are as follows:

- Since I will only have been with the company 11 months as of my due date, am I covered by FMLA and the California Paid Leave Act?
- Do I accrue time as an employee while being paid disability? I know that I get 6 weeks post birth and I think 4 weeks prior to birth, right? If so, this would put me over the 12 month mark, correct?
- How much time can I take off and still have them hold my job?
- Are there any nuances associated with the fact that the company is based in New York? FYI, it is registered as a company in California.

Thanks in advance for your help.

Yes you would qualify for PFL in the state of California, assuming the primarily NY based company has paid SDI into California. (You said they are registered so it is probably ok)

It is not a statue on SDI - you are paid so long as you are certified as unable to work by a doctor. So the "usual" length is UP to four weeks before and 6 weeks after birth for a regular delivery and 8 weeks for a c-section. Frequently, too, CA sends out the recertification on the extra two weeks for the c-section. Likewise, if your doctor for medical reasons wanted you out longer, he or she could request that.

FMLA sounds like it is not a benefit to you for a few reasons: your length of service as well as number of employees located at your work location. So that is likely not going to matter here.

Unfortunately I don't think you have any job protection per se (like a FMLA). In this type of case usually you can tell how a company will respond to this by how they respond to others.

Thanks for the quick response. I have a few follow up questions.

My 1 year anniversary date at my company is November 1. My due date is October 1. If I am out on SDI post delivery am I still accruing time as an employee? Meaning, I would hit the one year service mark while on disability and therefore qualify for FMLA and also for the California Paid Leave Act?

Please advise.

Thanks.

With FMLA, the employer must have 50 or more employees within 75 miles of your job site for you to be eligible (assuming you've met the one-year and 1,250 hours in the past year requirements as well). From the description of your job situation, it doesn't sound like your employer meets the size requirements for FMLA. Sorry.

Something you need to be aware of with California PFL.

First, the employer does not have to provide you with the forms. You should go to "www.edd.ca.gov" and find the PFL informaion on the lower right section of the page. Follow their instructions and meet any required filing deadlines. You will need a medical certification from your physician. If you have questions or need help, call (877)-BE-THERE the EDD people are very helpful.

Second, there is a 7 day unpaid waiting period. Your employer may require you to take vacation, up to 2 weeks, before becoming eligible.

Third, expect to receive approximately 55% of your normal salary.

Fourth, I would expect your physician to put you on disability rather than PFL.

Okay, to clarify, you are eligible for BOTH SDI (state disability payments for when you are disabled by pregnancy - four weeks before and 6 weeks after birth for a regular delivery and 8 weeks for a c-section) and PFL (an additional 6 weeks after that). Both are paid through the Employment Development Department.

As far as job protection goes, you will never be eligible for FMLA or CFRA, even if you did accrue the extra time - your employer is to small to qualify.

You may have job protection during the time you are disabled by pregnancy - I beleive the requirement is 5 employees in Ca, but I'm not sure off the top of my head. In any case, if you are fired for taking off the time your doctor certifies you as disabled, you would have other remedies. IF you take more than that time (as you would if you opted to take PFL) that time is not job - protected.

The requirement is 5 employees.

What I don't remember is if it is 5 employees total, or 5 in CA.

I work for a company that has 75+ employees in my area in california (for more than one year, full time). My understanding of CA law is this:

Basically, my understanding of California Law is that I am eligible for 6 weeks paid state disability after the birth of the baby (up to four months in the event I continue to be disabled after the birth). In addition, I am eligible for 6 weeks of paid family leave insurance after my period of disability ends. Further, 12 weeks of unpaid leave per the California Family Rights Act begin once the period of disability ends. Which would give me 18 weeks of leave with 12 weeks paid.

So my schedule would look like this:
birth is september 17th, paid state disability begins
October 30th paid state disability ends, paid family leave insurance begins, AND 12 weeks family leave begins
December 11th paid family leave insurance ends, AND 6 weeks left unpaid family leave in the balance
January 22nd 12 weeks family leave ends and back to work

My local HR rep says this:
Don't quote me on this but it is my understanding you are on State disability for six weeks. The company pays you the difference depending upon how much sick and vacation pay you have accrued. Yes, we are obligated to keep your position open for up to 12 weeks. I'm not quite sure how the insurance works during this period of time.

ME:
I am waiting to hear back from our corporate office, but I want a heads up that I'm interpreting the laws correctly.

Thanks,
Shannon

by the way, I understand that any advice should not be considered legal advice blah, blah, blah. BUT I do plan on getting an employment attorney involved if a dispute arises between me and corporate HR.

You appear to have everything correct.

Woohoo! :)

Yaaaay!!! I hope my doctor agrees that my job is too stressful for me to return after only 6 weeks! Hopefully, I can get 8 or 10 weeks of disability before family leave kicks in. After all, I have paid for it.

Thanks again Megan Ross Hutchins, Esq. :D

You are welcome!

Unfortunately,you can't count on you doctor being able to get you more than 6 weeks (usually that only happens if you have c-section or an infection, so hopefully you won't).