California - small company - right to return to work

[CA-confused-momtobe]

I work for a small company based in CA that has 11 employees. I have been working for them full-time for the last 2 years. I am about to start my maternity leave 2 weeks before my due date and had previously discussed taking 12 weeks after the birth with my manager.

Up until today I thought everything was working out, we had discussed a new, but equivalent role, I would be returning to, etc. Tonight we had a discussion that included things like "we hope there will be a job for you" and other statements like that. We have no HR department so I don't really have anyone else to talk to about it and there are no other woman in the company with children.

My understanding of the California law was that my job was protected for up to 4 months, is that correct? I know that none of the federal laws applies because of the size of the company but I thought there was a California law that protected my job.

Thanks for any help.

[Betty3]

Under California’s Pregnancy Disability Leave law (PDL), it is an unlawful employment practice for an employer to refuse to allow a female employee disabled by “pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months.” Cal. Govt. Code § 12945(a). The four-month period is a maximum. If, however, the employer provides more than four months of leave for other types of temporary disabilities, the employer must make the extended leave period available to women taking PDL. Leave may be taken intermittently, or it may be taken on a reduced work schedule. Cal. Code Regs. tit. 2, § 7291.7(a)-(b). Leave can be taken for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth and related medical conditions. There is no length of service requirement before an employee is entitled to take this leave. Cal. Code Regs. tit. 2, § 7291.7(c). At the end of the leave or transfer period, an employee is generally entitled to reinstatement. Cal. Code Regs. tit.2, § 7291.9.

If an employee requests, upon the advice of her health care provider, reasonable accommodation for her disabling condition, the employer shall grant it. If an employee requests, with the advice of her physician, a temporary transfer to a less strenuous or hazardous position for the duration of her pregnancy, the employer shall comply if the transfer can be reasonably accommodated. Cal. Govt. Code § 12945(b).

An employer is subject to California’s pregnancy disability leave law if the employer regularly employs five or more full- or part- time employees. Cal. Govt. Code §§ 12926(d) & 12945; Cal. Code Regs. tit. 2, § 7291.2(h). The state, political or civil subdivisions of the state, and cities must also comply, regardless of the number of employees.

Employers may require employees to provide reasonable notice of when they intend to take PDL leave or request a transfer, and the estimated length of the leave or transfer. The employee must provide this notice at least 30 days in advance, unless it is not practicable to do so. If the employer puts any notice requirements into place, it must give employees advance notice of those requirements. Also, as soon as practicable after receiving the employee’s notice, but no later than 10 calendar days, the employer shall respond to the employee’s request. Cal. Code Regs. tit. 2, § 7291.10.

The employer may require a written medical certification, but only if the employer also does so for similarly situated employees. The employer may not require any more information than is allowed by the regulations. If the certification expires, the employer may ask for recertification. The employer may also require the employee to provide a “return-to-work” release from a health care provider. Cal. Code Regs. tit.2, § 7291.10(b)-(c).

PDL is not paid leave. Employees may be entitled, however, to Ca. disability benefits (SDI) to replace lost wages.

[CA-confused-momtobe]

Thanks very much for the information. I have a couple of follow-up questions.

1) Is PDL regularly used for standard maternity leave, or is it supposed to be used only when something really bad happens? I can definitely see an argument that it doesn't take 3 months to recover from a standard childbirth.

2) My situation is slightly complication in that I am actually only located in CA about 20% of the time, the rest of the time I live in London. I do not pay CA taxes (I know this means I can't receive any SDI, but I am not worried about that) and the company does not have a UK entity and does not pay any UK payroll taxes. The way they have gotten around this with our payroll provider is that they faked my address in Nevada which has no state income tax.

This is probably not all completely legal. . . but we are all old friends and until they started giving me a hard time about returning to work I wasn't at all concerned.

So my question is if I am still covered by California employment law although I do not live in CA? The other 10 employees all live in CA and work out of the same office.

Thanks again for any help.

[CA-confused-momtobe]

I just remembered one more question I had. Was is the normal practice when it comes to vesting of stock options. Does vesting usually suspend during PDL or does it continue as normal?

[Pattymd]

Would the vesting be suspended for a nonpregnancy/birth-related leave of the same duration for a similarly situated employee?

[HR/DisMgr]

I'll take a stab at question #1--yes, PDL should be used for any absences related to pregnancy. However, it is only for the medical incapacity related to the pregnancy. It does not provide for any bonding leave. So if you are only disabled for 8 weeks, that is all the job protection you get. Not 12 weeks, and not up to 4 mos.

FMLA/CFRA would offer bonding leave, but your company is too small to qualify.

I hope that helps.