Your Maternity Leave Rights in California
Updated: Jan 22
Do you work for a California company with 5 or more local employees? If you don't, click here.
If you do, you may be entitled to entitled to
FOUR MONTHS of pregnancy disability leave AND 12 WEEKS of bonding leave subject to conditions.
For a total of almost seven months of leave. Almost no one takes seven months, yet this is your right under the law. Tell yo' friends! Tell yo' sisters! Tell yo' daughters! We need to spread the word. Your employer is unlikely to tell you: "Hey, did you know you can take MORE time away from work?" You need to ask for your maximum leave entitlement yourself. Educate yourself mama! Let's make this the status quo NOW.
Women who work for big employers have historically hit the jackpot on leaves. Until recently, only women who worked for companies with 50 or more employees would receive maximum maternity leave. Now also employees who work for companies with 20 or more employees will receive these rights. The law expanded again in 2020, and as of 2021 those who work for employers with 5 or more employees are also be able to use the maximum leave rights. This law is still in diapers, but it's very much alive and enforceable. For employees of mid-size companies, your rights are now actually very similar to the rights of employees of large companies.
Let's look at this in detail:
Your Right to Four Months of Disability Leave for Pregnancy, Pregnancy-related Condition or Birth
under the Fair Employment and Housing Act (FEHA)
These rules apply if you work in California for an employer with 5 or more employees
You can take up to four months of leave for your pregnancy, pregnancy-related condition, or birth. Four months is slightly rounded down, it's actually 17 1/3 weeks. This leave can be taken in pieces or at once.
Please know your doctor has to approve this 4 month leave, meaning they have to provide a medical certification that you are disabled during this entire time. Some doctors are less willing to do this than others. You may need to advocate with your doctor that you want to take the entire 4 months of disability. Once your doctor declares you're no longer disabled, you are no longer entitled to disability leave, and you would need to take your bonding leave. If you have no pregnancy-related conditions and want to maximize the time with your baby, you can start this leave on the day of the birth. If you do have pregnancy-related conditions or want to take a few weeks prior to birth to prepare for the baby, you can take this leave before birth, but then you will lose this time after the baby is born.
The Rules of Disability Leave (FEHA)
Unlike bonding leave, all employees are entitled to disability leave, regardless of length of service or hours worked.
Four months mean the numbers of days or hours that you would work within four months. (e.g. If you're part time, you don't get eight months)
You can take this leave intermittently or on a reduced schedule basis, but if it's too difficult for the employer you may be transferred to a light duty position, as long as there is no change to your pay or benefits.
Pregnancy disability includes severe morning sickness, time off for prenatal care, and depression.
After your disability leave, you can take;
Your Right to 12 Weeks of Bonding Leave
Under the Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA) and/or California New Parents Leave Act (NPLA)
These rules apply if you work in California for an employer with 5 or more employees.
First, a math test. Answer the following three questions:
Do you work for a company with 5 or more employees within 75 miles of your jobsite?
Have you worked for this company for at least one year as of the start date of your leave?
Have you worked for more than 1250 hours (about 24 hrs/week) as of the start date of your leave?
If you answered yes to all three, you are eligible for Bonding Leave. In addition to your disability leave, you can take 12 weeks of bonding leave within one year after birth. You have to take it within one year after birth, or you lose it.
If you answered no to any of these questions, you are not entitled to bonding leave. But you are still entitled to disability leave.
The Rules of Bonding Leave (CFRA/FMLA)
You can take the leave in two week increments, and twice in increments of less than two weeks.
You may also ask to use your leave for part time or reduced schedule, if that works for your employer.
Your employer needs to keep you on the health plan.
Your employer may not deny your bonding leave because of it would be a hardship on the business. Your employer may not restructure your job or force you to take a modified schedule instead of your leave.
You have some obligations under leave laws: You're expected to give reasonable notice of your leave and you're expected to cooperate with your employer in providing doctor's notes.
Maximize Your Leave By Stacking Leaves - But Be Specific!
It's unlikely your HR Department will tell you how to maximize your leave. In my experience, HR is interested in protecting the company, not in protecting you and your family. I am.
So instead of answering the question, "How much leave can I take?" with a number of months, they will say things like "your rights under FEHA and CFRA don't run concurrently." When you see this: "don't run concurrently" - it means you can stack your leaves like wooden blocks. But it's on YOU to actually request all of your leave. Your employer has no duty to instruct you to stay home longer if you did not request the correct types of leaves. That would not be in their best interest because they want you to come back.
You need to be super clear with your employer that you are taking disability leave AND bonding leave. These are two separate and distinct rights that employees have under California Law.
If you want to get specific, here's the statutes you'll need to invoke - You want to ask for disability leave under FEHA, and bonding leave under FMLA/CFRA/NPLA. Here's where it gets confusing: Disability leave under FMLA or CFRA exists too. So let's say you ask for disability leave under FMLA or CFRA, you may be shortchanging yourself because you would forfeit your bonding leave rights under these statutes, as you're already entitled to disability leave under the FEHA. I know... I know... why is the law so annoying and tricky and confusing. A lot of mistakes are made here. It may be up to you to educate your employer on your rights. They honestly may not even know about these rules. Most don't.
This article is just about the birth mom's leave entitlements. Your partner may be eligible for leave too. If you are entitled to up to seven months of leave, and your partner is entitled to bonding leave, and you decide to stack your leaves, your baby may be able to spend almost his or her entire first year with a parent! We're coming for you, Sweden!
I know what your next question is: "Alright lawyer lady, how am I supposed to take so much time off work? It's time for you to show me the money." Read my article on benefits here.
And I know you may be thinking, "Well it may be sweet to be entitled to so much leave, but I know that if I take all of my leave, my job will be on the line." Are you worried about how you'll be treated after you return? Read about retaliation here.
And please mamas, spread the word! Everyone needs to know that women who work for California employers with 5 or more employees should receive almost seven months of leave. This should be the norm, and not the exception. Let's keep mama cuddling with her new baby for as long as she is allowed to under the law, and not a minute less.
DISCLAIMER - This blog is for educational purposes and to give general information and a general understanding of the laws relating to California employment law. It is not intended to provide specific legal advice, nor should you use it for that purpose. By using this blog you understand there is no attorney client relationship between you and the Mamattorney or Gruenberg Law and you should not use this blog as a substitute for competent legal advice from a licensed attorney in your state. We don't know anything about your particular situation, and the law has many exceptions. If you have a dispute with your employer, you need to consult with an employment lawyer.