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California: PDL/FMLA/CFRA and doctor ordered bed rest California

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  • California: PDL/FMLA/CFRA and doctor ordered bed rest California

    Hello,

    I am 10 weeks pregnant with Twins and expect to deliver in end of April. I am considered to be a high risk pregnancy by doctors since I am carrying twins and prior medical history. On the work front, I work for a Billion dollar company with thousands of employees. My office is based in San Francisco, and I have been working with them for 2+ years. My employer does not know that I am pregnant. I plan to tell them once I am 13 weeks along.

    A few days ago, I had a pregnancy related complication and received a doctors note asking me to minimize activity (she did not mention pregnancy in the note). I am negotiating with my manager to let me work from home 2 days a week for the next 4-6 weeks. The company has a partial-work from home program,with people with similar job descriptions as mine who work from home 2-3 times a week. Partial-working from home for 4 weeks should help me recuperate and allow me to have a smooth pregnancy.

    I am trying to understand my rights under the following three scenarios:

    1. Doctor ordered bed rest: In case things don't improve and the doctor orders full bed rest, then I can go on 4 months of PDL (which runs concurrently with FMLA) + 3 months of CFRA around the delivery. If I read this correctly, then I can get 7 months pregnancy leave with job protection. Can the experts confirm if this is indeed true!

    2. Work from home for the next 6 months: What happens if the doctor recommends work from home 3 days a week for the next 6 months. Can my employer prevent this even if it is for pregnancy related reasons. Like I said, there are people with my job descriptions who work from home because they have young children.

    3. Layoff in either of the two scenarios: Can I be laid off if I am on PDL (scenario 1) or pregnancy related work from home (scenario 2). What if the company is going through a major layoff and plans to lay off many people due to bad business environment. In either case, can they then hire a contractor to do my job?


    I would appreciate if the good Samaritans on this forum could help me understand my course of action. I don't want to discuss this with my HR till I am ready to declare my pregnancy but knowing my rights would put my mind to ease.

  • #2
    I'll let others answer the first two questions. In response to number three, being on PDL, FMLA, or CFRA does not protect you from a layoff that would have occurred had you not been on one of these forms of leave. An employer cannot lay you off because you are pregnant, but it can lay you off in spite of it if you would be laid off otherwise. Being pregnant does not protect you from a layoff. The law does not prevent them from hiring a contractor to do some/all of your job functions if that's part of the reorganization.
    I am not able to respond to private messages. Thanks!

    Comment


    • #3
      Agreed with the last answer. Past that, I am not the best person to answer the rest of the question, but I will answer what I know. For federal (ADA/FMLA) and the CA laws you mentioned, a doctors note by itself does not mean much. The employer needs a context for the note. If the employer knows you are pregnant, then pregnancy specific laws kick in. If they do not know you are pregnant, then those laws arguably do not kick in. Employers arguably are not responsbile for making decisions based on information they never had because their employees choose to keep them in the dark. The key is that:
      1. Not all doctor notes are real. You can get programs on line to write your own notes. Many employers routinely follow up with the doctor, partially for this reason.
      2. Even if the note is real, it is only legally meaningful in context of specific medical conditions and what specific laws say about those medical conditions. A note that says Jane is sick, I want you to make whatever accommodation Jane wants, since I am doctor and doctors are always right is legally nothing. The employer has to know which law (if any) is in play and they need to know exactly what the medical condition is so they know what they are legally required to do.
      3. For some laws such as WC related laws, the employers failure to find out exactly what the problem is could be held against them legally.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

      Comment


      • #4
        This is how it works in Ca. "if/when" a pregnant employees qualifies for all available leaves (PDL, FMLA, CFRA)

        It's possible for an employee to get up to 7 mos. of job protected pregnancy leave in Ca. though all women will not qualify for the total 7 mos.:
        In Ca. most female employees can take up to 4 mos. of leave for childbearing & pregnancy related disability (subject to med. certification that an actual disability exists) under the Fair Employment & Housing Act. The fed. FMLA & the state act are generally in alignment except in Ca. a woman can take a 4-mo. pregnancy disability leave followed by a 3-mo. fam. med. leave. This is the rare circumstance when leave under the FMLA & Ca. Fam. Rights Act don't run concurrently--FMLA leave will run concurrently with the 4-mos. of pregnancy disability leave, after which the Fam. Rights Act can be invoked for an add'l. 3-mo. leave. (for bonding)

        An employee will not get the total 4 mos. of PDL (pregnancy disability leave) unless they are disabled for 4 mos. Also for FMLA & CFRA the requirements for them must be met. (seems you meet them from your post) Ca. employees are entitled to leave under PDL regardless of the length of employment or hours worked. Most employers with 5 or more employees are subject to PDL.


        While off on disability, an employee should get Ca. SDI (state disability insurance) to get paid while off on disability.
        The PFL (paid family leave) pays employee while off on bonding leave.

        Here's a link that will take you to all the leaves:
        http://www.las-elc.org/help-leaves.html
        Last edited by Betty3; 10-11-2012, 12:38 PM.
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

        Comment


        • #5
          Originally posted by greenmax View Post
          Hello,

          I am 10 weeks pregnant with Twins and expect to deliver in end of April. I am considered to be a high risk pregnancy by doctors since I am carrying twins and prior medical history. On the work front, I work for a Billion dollar company with thousands of employees. My office is based in San Francisco, and I have been working with them for 2+ years. My employer does not know that I am pregnant. I plan to tell them once I am 13 weeks along.

          A few days ago, I had a pregnancy related complication and received a doctors note asking me to minimize activity (she did not mention pregnancy in the note). I am negotiating with my manager to let me work from home 2 days a week for the next 4-6 weeks. The company has a partial-work from home program,with people with similar job descriptions as mine who work from home 2-3 times a week. Partial-working from home for 4 weeks should help me recuperate and allow me to have a smooth pregnancy.

          I am trying to understand my rights under the following three scenarios:

          1. Doctor ordered bed rest: In case things don't improve and the doctor orders full bed rest, then I can go on 4 months of PDL (which runs concurrently with FMLA) + 3 months of CFRA around the delivery. If I read this correctly, then I can get 7 months pregnancy leave with job protection. Can the experts confirm if this is indeed true!

          2. Work from home for the next 6 months: What happens if the doctor recommends work from home 3 days a week for the next 6 months. Can my employer prevent this even if it is for pregnancy related reasons. Like I said, there are people with my job descriptions who work from home because they have young children.

          3. Layoff in either of the two scenarios: Can I be laid off if I am on PDL (scenario 1) or pregnancy related work from home (scenario 2). What if the company is going through a major layoff and plans to lay off many people due to bad business environment. In either case, can they then hire a contractor to do my job?


          I would appreciate if the good Samaritans on this forum could help me understand my course of action. I don't want to discuss this with my HR till I am ready to declare my pregnancy but knowing my rights would put my mind to ease.
          1. Yes, you can get up to 4 months of PDL (running concurrently with FMLA). You also get 12 weeks of CFRA baby bonding. One caveat, however, is that if you have not given birth by the time your PDL expires, it is up to your employer to allow you to take early CFRA bonding. They are not required to do so. Potentially, you could ask for an extended leave as an accommodation until after you give birth.

          2. Your employer has to provide you with a reasonable accommodation for your pregnancy disability unless there is an undue hardship. Working from home could be considered a reasonable accommodation.

          3. As stated above, you can be laid off as long as it is not because of your pregnancy.

          IMO, I would tell your employer right away that you are pregnant. Otherwise, you don't get the benefit of these laws that protect you during your pregnancy.

          Comment


          • #6
            1. What Betty sid.

            2. Your state is much more generous about this than any other. That said, your employer must know that the accommodation is being requested due to a pregnancy. I get not wanting to tell them until some later date but they aren't obligated to do a thing if you request it "just because". This is one of those cases where you really need to come clean with at least the decision makers now. You can tell the rest of the world cia birth announcement if you so choose.

            Even then, there is no blanket rule or law that says you get to work from home 3 days a week or at all. If your doctor says bedrest, your employer can hold you to that. if you doctor proposes some sort of alternate schedule or work arangement, your employer *may* grant it if it is reasonable. Reasonable is a moving target and there is no bright line. You can not be turned down just because you are pregnant but you also don't get what you want automatically because you are. If your employer already has a work from home program, chances are good they won't make much of an issue with you taking part unless there is a good reason.

            The 3 day a week schedule would need to be approved but that comes off your leave entitlement.

            3. As the others have said, pregnancy is not a shield from the realities of the workforce. You are to be treated just as anyone else as far as layoffs are concerned.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

            Comment


            • #7
              Thanks Marketeer, DAW, Betty3, Endeavor, ElleMD. Your replies have cleared a lot of things for me. I will talk to me employers at an opportune time within the next week.

              A follow up regarding the layoff issue while on PDL/CFRA. In case the company does a restructure and I am laid off, then will I be fired in the middle of the disability leave or will they wait for me to come back to work to lay me off.

              I don't want to lose my medical benefits in the middle of a pregnancy.

              Thanks again.

              Comment


              • #8
                In case the company does a restructure and I am laid off, then will I be fired in the middle of the disability leave or will they wait for me to come back to work to lay me off.

                Unless CA has some specific law about this (Endeavor will know if there is) then it's up to the company. Under Federal law and the law of the other 49 states, this situation is not addressed directly - there is no law requiring that they wait till you come back but there is also no law saying that they can't.

                If any state has a specific law addressing this, it would be CA. I've never heard of one but as I said, if there is one Endeavor (and probably Betty too) will know.

                You will be eligible for COBRA.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                Comment


                • #9
                  A doctor isn't obligated to get into the specific details of the medical condition and treatment (and esp. not without the patient's consent), though there are certain basic info categories to cover for a medical certification (at least under FMLA).

                  An employer's expected to know whether it's subject to FMLA, and it's expected to know that any indication the medical issue is of a serious nature such that it requires ongoing treatment or, say, hospitalization of several days is something that they need to consider falls under FMLA if the worker is otherwise eligible. If it doesn't believe the doctor's note, as it relates to FMLA at minimum, it's free to pay for the person to see a doctor who can confirm-deny that the doctor's note provided wasn't bogus (can reveal whatever the patient gives him/her leave to reveal, but still isn't entitled to go into details without that consent).

                  If an employer's fuzzy on what the medical certification requires, they can google the given state's regulations on the topic (or, as to federal FMLA, the federal regs via the dol.gov site).

                  * * *

                  Anyhoo, no reason to think your medical insurance will go by-by even if you're laid off, but of course a billion-dollar employer would be obligated to give you a notice that you can elect COBRA retroactive to termination of coverage date within 45 days of termination of employment.

                  Comment


                  • #10
                    Also under PDL (not just FMLA) an employee needs to submit medical certification that an actual disability exists. Sometimes an employee may qualify for PDL but not FMLA (or CFRA). (& even if an employee qualifies for both, PDL can be up to 4 mos. & FMLA terminates after 12 weeks which runs concurrently with the PDL)

                    In this case, it seems OP qualifies for all leaves.
                    Last edited by Betty3; 10-12-2012, 12:40 PM.
                    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                    Comment


                    • #11
                      Thanks all for the replies interesting discussion

                      I have received an all clear from my doctors to disclose my pregnancy at work & I will be working with them.

                      I did not read any specific points about being fired while on disability, so I am assuming that my employer do not need to wait for me to get back from PDL to lay me off. They can do so in the middle of the PDL.

                      Comment


                      • #12
                        Yes, they can lay you off if they would have laid you off had you not been on any job protected leave. You would be treated like any other employee.
                        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                        Comment


                        • #13
                          Originally posted by Betty3 View Post
                          Yes, they can lay you off if they would have laid you off had you not been on any job protected leave. You would be treated like any other employee.
                          Thanks a lot for all the replies. This information is invaluable for me in the next few months. For now, my employers have let me work from home for 3 days/week.

                          Comment


                          • #14
                            You're welcome & congrats on the expected twins.
                            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                            Comment


                            • #15
                              Originally posted by Betty3 View Post
                              You're welcome & congrats on the expected twins.
                              Thanks for the wishes. I had like to ask another version of my earlier question regarding pregnancy related disability. A quick recap on my situation: I am 14 weeks pregnant with twins with expected delivery date of 7th May. I work for a billion dollar company with thousands of employees in California. I am eligible for CA-SDI. My doctor is inclined to have me go on full time disability from some time in early Jan.

                              In the event that this happens, what sort of disability coverage & time off do I get. My understanding is as follows, assuming doctors orders start from 1st Jan and the babies arrive on May 7th via normal delivery

                              1st Jan - 7th Jan: Waiting period for disability to kick in
                              8th Jan - 7th May: Covered by CA-SDI
                              7th May - 17th Jun: 6 Week period after delivery covered by CA-SDI
                              17th Jun - 29th Jul: 6 Week PFL after 6 weeks of SDI is over. Runs concurrently with 6 weeks of CFRA
                              30th Jul - 9th Sept: 6 more weeks of CFRA to complete 12 weeks.


                              In this period, my job is protected for 4 months from 1st Jan - 30th Apr under PDL/CFRA running concurrently and in the 12 week period from 17th Jun to 9th Sept under 12 weeks of CFRA.

                              Is this more or less correct. Does the CFRA kick in once the CA-SDI expires on 17th Jun or does it kick in on 1st May when PDL expires.


                              Thanks

                              Comment

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