Getting notice that an employee is pregnant can open a Pandora’s Box of questions for you. How much time off will she take, who will do her job, what are you required to do as an employer.
Let’s start with time off, what are the rules, and which rules apply. Well, in California there’s an alphabet soup of leave programs that can come into play with pregnancies.
All these programs come in one or more of two flavors – some provide time, meaning they protect the employee’s job and they have to be reinstated at the end of the leave; some provide salary replacement, meaning they give the employee some portion of their regular salary; – and some do both.
“…You can’t hire an independent contractor to do her job – because her job is a – well – job. And anyone doing that job will be considered an employee.”
Pregnancy Disability Leave is one of the job protection programs. Any California company with 5 or more employees (inside or outside the state), must provide Pregnancy Disability Leave to their employees. As to the employee – well, since there isn’t a length of service requirement for Pregnancy Disability Leave, all employees are eligible – that holds for part time folks as well.
Generally it’s an unpaid leave that’s available to your employee while she’s disabled due to pregnancy – so her doctor has to place her on disability. The maximum amount of time is appx. 4 months. By the way, Pregnancy Disability doesn’t have to be taken all at once, your employee may take it in increments for things like pre-natal doctor visits, or morning sickness.
Now, if you have 50 or more employees, then you’ll also have to consider the Family Medical Leave Act or FMLA. FMLA is another unpaid job protection program – and among other things, it provides up to 12 weeks for the mother to take care of her own medical condition (like pregnancy), and/or to bond with a new baby.
One interesting tidbit – when a mother is on Pregnancy Disability Leave, that time counts against her FMLA time as well. There are other detailed guidelines around FMLA, but since FMLA is strictly for larger employers (meaning those with 50 or more employees), I’ll leave those specifics to another episode.
The California Family Rights Act or CFRA is also an unpaid job protection program. And it also provides up to12 weeks for the mother to bond with a new baby. Sounds a bit like FMLA, right. Well, not so fast. First of all, CFRA isn’t just for larger employers – if your company has 5 or more employees (again, either in or outside California), then you have to offer CFRA. Also, Pregnancy Disability Leave time does not count toward CFRA time. So once, Pregnancy Disability is done, the new mother has up to 12 weeks to bond with her new baby. Additionally, CFRA isn’t just for the birth parent, either parent is eligible for the 12 weeks off – and this includes adoption and foster placement.
There are some eligibility guidelines for the employee – they have to have worked at least 12 months for the company in total, and a minimum of 1250 hours in the last 12 months.
Here’s a quick pro tip – 2021 is the first year California companies with as few as 5 employees have to offer CFRA coverage. So, just be aware that there are a number of new notices, and forms you’ll need to get your arms around.
There are two programs that provide partial pay for the employee – the state Disability program and The Paid Family Leave program (which is also offered by the state, and managed by the disability office).
State disability provides partial pay when an employee is disabled (60 – 70% depending on their salary). So, your employee could use state disability during her Pregnancy Disability Leave time, then she would at least get a portion of her salary.
Paid Family Leave, offers up to 8 weeks of partial pay (again 60 – 70%) for the employee to bond with a new baby. Now again, your employee could pair Paid Family Leave with CFRA to make sure she has some income during the Paid Family Leave 8 week period.
Depending on company policy, and the requirements of each leave program, your employee may be able to use sick or vacation time as well.
And, as you might guess, there are a host of notices, forms and other requirements that go along with processing any of these leaves.
One more thing – a quick word about who will cover her job while she is out on leave. Well, you have a lot of options – you can hire someone on a temporary basis or you could spread the work around to other employees. But there are two very important things that you can’t do.
You can’t hire an independent contractor to do her job – because her job is a – well – job. And anyone doing that job will be considered an employee, so don’t fall into that pit (and yes, I have seen a company audited and fined for just this thing). And second, don’t permanently replace her.
When I said before that a particular leave was a job protection program – that is precisely what it means – the person’s job is protected. So when they’re done with the leave – they have to be reinstated. And if for some reason you can’t or won’t reinstate them – definitely contact legal counsel before you make any moves.